Yes, illegal aliens have constitutional rights

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These words, from Section One of the 14th Amendment to the Constitution rank along with the Constitution’s Bill of Rights as — in these precincts — the most important in world and American history:

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.

{mosads}The following words do not rank well in American history, jurisprudence or in truth: “(Illegal aliens) do not have legal rights.” Glenn Beck declared this on CNN in February 2007.

He is not alone; popular radio talk show hosts Rush Limbaugh, Mark Levin, Laura Ingraham and Sean Hannity agree with Beck to one degree or another. For example, Ingraham — a lawyer — says that Supreme Court Justice William Brennan in Plyler v. Doe (1982) offhandedly commented that illegals had rights because they were “persons,” so no one should take Brennan seriously or his official declaration of legal rights of illegal aliens.

The critics all claim that undocumented workers or immigrants or migrants — whichever label is the flavor of the day — don’t have legal rights because they are lawbreakers by entering the country illegally and owe no loyalty to the United States. They claim that only U.S. citizens (natural born or naturalized) are protected by the Constitution. The critics are not only wrong — they are really, truly and sincerely wrong.

The U.S. Supreme Court settled the issue well over a century ago. But even before the court laid the issue to rest, a principal author of the Constitution, James Madison, the fourth president of the United States, wrote: “that as they [aliens], owe, on the one hand, a temporary obedience, they are entitled, in return, to their [constitutional] protection and advantage.”

More recently, the U.S. Supreme Court ruled in Zadvydas v. Davis (2001) that “due process” of the 14th Amendment applies to all aliens in the United States whose presence maybe or is “unlawful, involuntary or transitory.”

Twenty years before Zadvydas, the Supreme Court ruled that the state of Texas could not enforce a state law that prohibited illegally present children from attending grade schools, as all other Texas children were required to attend.

The court ruled in Plyler that:

The illegal aliens who are … challenging the state may claim the benefit of the Equal Protection clause which provides that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Whatever his status under immigration laws, an alien is a ‘person’ in any ordinary sense of the term … the undocumented status of these children does not establish a sufficient rational basis for denying benefits that the state affords other residents.

A decade before Plyler, the court ruled in Almeida-Sanchez v. United States (1973) that all criminal charge-related elements of the Constitution’s amendments (the First, Fourth, Fifth, Sixth and the 14th) such as search and seizure, self-incrimination, trial by jury and due process, protect non-citizens, legally or illegally present.

Three key Supreme Court decisions in 1886, 1896 and 1903 laid the 14th Amendment basis for the consistent ruling of the court that aliens, legal and illegal, have constitutional protection in criminal and certain civil affairs in the justice system.

In Yick Wo v. Hopkins (1886), the court ruled that:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons of similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution [the 14th Amendment].

In Wong Win v. United States (1896), the court ruled that:

It must be concluded that all persons within the territory of the United States are entitled to the protection by those amendments [Fifth and Sixth] and that even aliens shall not be held to answer for a capital or other infamous crime, unless on presentment or indictment of a grand jury, nor deprived of life, liberty or property without due process of law.

In summary, the entire case of illegal aliens being covered by and protected by the Constitution has been settled law for 129 years and rests on one word: “person.” It is the word “person” that connects the dots of “due process” and “equal protection” in the 14th Amendment to the U.S Constitution and it is those five words that make the Constitution of the United States and its 14th amendment the most important political document since the Magna Carta in all world history.

“Aliens,” legal and illegal, have the full panoply of constitutional protections American citizens have with three exceptions: voting, some government jobs and gun ownership (and that is now in doubt) — Glenn Beck and others notwithstanding.

Contreras has written several books on immigration and immigration reform, available at

Tags 14th Amendment birthright citizenship Citizenship Clause Constitution Illegal immigration Immigration

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