Question

Do Constitutional protections of civil liberties and civil rights apply only to citizens or do they extend to non-citizens as well?

Answer 1

Non-citizens don’t share all the rights of citizens under the U.S. Constitution. They’re subject to immigration law, under which the executive branch has broad authority to determine whether it wants them in the country or not. And until they’ve passed through immigration control, they aren’t technically on U.S. soil, thanks to a “legal fiction” or counterintuitive legal understanding that carves out an exception to the normal rule, said Gordon.

“When you’re standing at JFK, you stand outside the borders until you are inspected and admitted,” she said.

Trump supporters might be surprised at how far the Constitution extends toward non-citizens once they’re inside the country, however. Cases extending back to the 1800s, including ones brought by Chinese immigrants challenging the arbitrary seizure of their property, have established the rights of non-citizens under the Fourth and Fifth Amendments including due process and the right to a jury.

In U.S. v. Wong Kim Ark, an 1898 decision, the Supreme Court ruled that the term “person” under the Fifth Amendment applied to aliens living in the U.S. In Fong Yue Ting v. U.S.,the court held that Chinese laborers, “like all other aliens residing in the United States,” are entitled to protection of the laws.

“There’s no dispute at the absolute core,” said Andrew Kent, a constitutional scholar at Fordham Law. “If somebody is picked up by police they the have same Miranda and due process rights in all contexts except immigration law.”

The ACLU and other opponents of Trump’s immigration order say it also violates both U.S. statutes and international law, specifically the Refugeee Act of 1980, which Congress passed to comply with an international treaty. That law increased the annual quota for refugees to 50,000 and adopted the U.N. definition of a refugee as “any person” who legitimately fears persecution in their home country.

“The parts of this order that discriminate against people based on national origin are in violation of the 1980 Refugee Act,” said Gordon. “That’s a clear statutory violation.”

The Trump administration will point to the broad discretion given the executive branch and the Attorney General to determine which refugees to allow in and which to reject. And it is true U.S. law is less than consistent on how to treat foreign nationals. A line of Supreme Court decisions extending from the 1890s into the Red Scare years of the 1950s held that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned,” Gordon said.

The ACLU and immigration advocates will argue that non-citizens who have already received the required papers have the right to due process and entry. And the Constitution even extends to refugees with no papers to at least have their cases considered before they are returned to the countries they are fleeing, the ACLU argues.

Will they succeed? The judges who issued injunctions against enforcement of the order certainly believe the plaintiffs stand a substantial chance of winning their arguments. The question is how hard the Trump administration will fight to defeat them. The Obama administration was blocked when it tried to grant temporary residency to millions of illegal immigrants, in a ruling the Supreme Court left standing this year after deadlocking 4-4. Trump’s unlikely to revive that case, but administration lawyers may well find themselves before the Supreme Court themselves arguing about executive authority over immigration.

Protection of civil liberties and civil rights is perhaps the most fundamental political value in American society. And yet, as former Justice Frankfurter explained in the quote above, the people who test liberties and rights in our courts are not always ideal citizens. Consider some of these examples:

A convict whose electrocution was botched when 2,000 volts of electricity rushed into his body, causing flames to leap from his head

A university student criminally charged for writing and publishing on the internet about torturing and murdering women

Each of these people made sensational headline news as the center of one of many national civil liberties disputes in the late 20th century. They became involved in the legal process because of behavior that violated a law, and almost certainly, none of them intended to become famous. More important than the headlines they made, however, is the role they played in establishing important principles that define the many civil liberties and civil rights that Americans enjoy today.

Liberties or Rights

What is the difference between a liberty and a rights ? Both words appear in the Declaration of Independence and the Bill of Rights. The distinction between the two has always been blurred, and today the concepts are often used interchangeably. However, they do refer to different kinds of guaranteed protections.

Civil liberties are protections against government actions. , the First Amendment of the Bill of Rights guarantees citizens the right to practice whatever religion they please. Government, then, cannot interfere in an individual's freedom of worship. Amendment I gives the individual "liberty" from the actions of the government.

Civil rights, in contrast, refer to positive actions of government should take to create equal conditions for all Americans. The term "civil rights" is often associated with the protection of minority groups, such as African Americans, Hispanics, and women. The government counterbalances the "majority rule" tendency in a democracy that often finds minorities outvoted.