With the controversy over President Trump's immigration ban, I've noticed that a lot of people are arguing over whether undocumented immigrants have constitutional rights. Tomi Lahren tweeted the other day that the "hard left" lives in "a lala land where illegals have constitutional rights." Glenn Beck has gone a little bit more extreme, saying that undocumented immigrants "do not have legal rights." And the same point is all over Twitter.
It sounds like it makes sense. Why would the Constitution protect people who aren't even part of the country or respecting its laws? That'd be wacky, like trusting the people to govern themselves or guaranteeing the right to say whatever you want! The problem, as you probably guessed from the sarcasm, is that undocumented immigrants do have constitutional rights. Lots of them! And this isn't a controversial opinion, or something "the hard left" invented recently. The Supreme Court of the United States has made this point over and over again in cases like Yick Wo v. Hopkins, Wong Wing v. U.S., Plyer v. Doe and most recently in Zadvydas v. Davis. In Wong Wing, Justice Field even wrote this in his decision:
The term "person," used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic ... This has been decided so often that the point does not require argument. [Emphasis mine]
That was in 1896. This argument was boring people 130 freaking years ago.
Library of Congress
He didn't even have cat videos then. Getting a letter was considered an event. That's how tired he was of it.
Justice William Rehnquist was one of the most radically conservative Judges in American history. He disagreed with the conclusion reached in Brown v. Board of Education and supported a racially segregated society. And even he didn't challenge the idea that undocumented immigrants are protected by the Constitution. His qualms were about how far the protection actually went.
The trick is that when the Constitution mentions "citizens," it is exclusive to citizens of the United States, but when it starts using the word "person," it's referring to everybody "within the territorial jurisdiction" of the U.S. Like in the due process clause of the 14th Amendment:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the 5th Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This is actually one of the things that makes America great. It doesn't matter where you were born, what crimes you've committed, or whether it's legal for you to be in our country -- the Constitution doesn't forget that you are a human being. And it never will.
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