Last updated on: 2/14/2008 12:02:00 PM PST
Should Immigrants in the United States Illegally Have Constitutional Rights and Protections When on American Soil?
Owen Fiss, LLB, Sterling Professor at Yale Law School, in the Oct./Nov. 1998 Boston Review essay entitled "The Immigrant as Pariah," offered the following:
"[W]e have increasingly imposed disabilities on immigrants, mostly on illegal immigrants, but even on those who are lawfully present. In recent years the social disabilities have increased, and have taken three different forms: (a) bars on employment; (b) exclusions from public schools; and (c) denials of statutory entitlements, such as food stamps or medical services, routinely provided to the poor by the welfare state...
The laws imposing social disabilities on immigrants do indeed seem at odds with the Constitution, but only because of the social stratification they tend to produce, not because they violate the antidiscrimination principle. The constitutional guarantee of equality bars not just discrimination, but also laws that create or perpetuate caste-like social structures, and for that reason calls into question the 1996 welfare act and similar measures."
Oct./Nov. 1998 - Owen Fiss, BPhil, LLB
The American Civil Liberties Union (ACLU), in a section entitled "Immigrants' Rights" on its website (accessed Mar. 6, 2007), offered the following:
"It is true that the Constitution does not give foreigners the right to enter the U.S. But once here, it protects them from discrimination based on race and national origin and from arbitrary treatment by the government. Immigrants work and pay taxes; legal immigrants are subject to the military draft. Many immigrants have lived in this country for decades, married U.S. citizens, and raised their U.S.-citizen children. Laws that punish them violate their fundamental right to fair and equal treatment."
Mar. 6, 2007 - American Civil Liberties Union (ACLU)
In Almeida-Sanchez v. United States (1973), the U.S. Supreme Court, in a 6-3 decision written by Justice J. Stewart, held:
"It is undoubtedly within the power of the Federal Government to exclude aliens from the country. It is also without doubt that this power can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders.
Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. But the search of the petitioner's [foreign national] automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner's Fourth Amendment right to be free of 'unreasonable searches and seizures.'
The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards."
1973 - Almeida-Sanchez v. United States (43 KB)
Gerald L. Neuman, JD, PhD, Professor of International, Foreign, and Comparative Law at Harvard Law School, in his 1996 book entitled Strangers to the Constitution: Immigrants, Borders, and Fundamental Law, wrote the following:
"The Supreme Court has also held for more than a century that aliens within the United States are persons entitled to constitutional protection. That includes aliens who are unlawfully present, although recent Supreme Court dicta suggest that intensified concerns over both drugs and migrants penetrating the border may put pressure on that commitment. Moreover, the Court has further held that aliens not present in the United States are entitled to constitutional protection with regard to actions taken within the United States against their property rights."
1996 - Gerald L. Neuman, JD, PhD
Richard B. Freeman, PhD, Herbert Ascherman Chair in Economics at Harvard University, in an Oct./Nov. 1998 Boston Review essay entitled "Let the People Decide. A response to 'The Immigrant as Pariah' by Owen Fiss," stated:
"[Dr. Owen] Fiss wants the judiciary to draw a boundary in the gray area in favor of immigrants, on the principle that the Equal Protection Clause of the Constitution prohibits 'the creation of a near caste-structure... of socially and economically disadvantaged groups... that live at the margin of society;' and that immigrants are exceptionally likely to fall into this group...
I find his arguments strained, and reject as antidemocratic the notion that the judiciary should determine policy in this area. We may all oppose social exclusion, but to argue that the Constitution requires that courts regulate social policies to limit such exclusion seems to be an extraordinary reading of law... [I]n all instances, I would leave the decision in the hands of the electorate."
Oct./Nov. 1998 - Richard B. Freeman, PhD
Myron Weiner, PhD, late Professor of Political Science at the Massachusetts Institute of Technology, in an Oct./Nov. 1998 Boston Review essay entitled "Messy Realities," made the following remarks:
"What we don't need--at the expense of workers and taxpayers--is the kind of solution [where] everyone present within the boundaries of the United States ought to have the same rights and benefits. It would be politically irresponsible to turn these legislative issues over to the courts to decide on the basis of constitutional principles. Instead, we need reasoned analysis and public discussion of how we can balance diverse objectives to accomplish what is fiscally possible, what is humane, and what best serves the goals of incorporating migrants into citizenship, deterring illegals, maintaining public health, and protecting children."
Oct./Nov. 1998 - Myron Weiner, PhD
The University of South Alabama, in a Jan. 31, 2006 enrollment services website section entitled "Constitutional Rights of International Students and Scholars," stated:
"People often speak about the Constitution and their 'Constitutional Rights' or 'Civil Liberties.' ...Very few people have taken the time to read the Constitution of the United States and to understand their rights and how they work. The Constitution refers to three kinds of people to whom the Constitution applies: citizens, persons, and the people. Those distinctions mean that aliens have some rights, but not all. In looking at Constitutional Rights, note first to whom the discussion applies...
If you are an alien who has been admitted to the U.S., then generally you have these rights. If you entered the U.S. illegally and were, therefore, not properly 'admitted,' then some of the protections do not apply to you... Under the basic rules of international law, every state (country) has the sovereign right to determine who may enter and remain within its borders and under what conditions. In general, a person who is not a citizen of a country has no 'right' to be in that country. As an alien, not a citizen, you do not have all of the rights or protections that a citizen has."
Jan. 31, 2006 - University of Southern Alabama
Heather Mac Donald, MA, JD, John M. Olin Fellow at the Manhattan Institute, in an article entitled "Illegal Immigrants to Get More Constituttional Rights than Citizens," from The Immigration Blog website (accessed Mar. 9, 2007), offered the following:
"Under debate is L.A.’s sanctuary policy, special order 40, which prohibits the police from enforcing immigration laws... This is preposterous. To arrest an American citizen for a crime, arrest warrants are rarely required; about 95% of arrests of citizens are warrantless. But in L.A., under the new rules, illegal criminals will have due process rights that guarantee them not just judicial review before they can be taken off the streets, but federal judicial review—the gold standard of all constitutional protections. Maybe home-grown criminals should renounce their citizenship and reenter the country illegally. It would be a constitutional windfall for them. It is a world turned upside down where border trespassers have more protections from a state they have already thumbed their noses at than legal residents."
Mar. 9, 2007 - Heather Mac Donald, MA, JD