The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Institute for Humane Studies Learn Liberty website has posted my new article on "The Constitutional Rights of Non-Citizens." Here is an excerpt:
Noncitizens undeniably have a wide range of rights under the Constitution. Indeed, within the borders of the United States, they have most of the same rights as citizens do, and longstanding Supreme Court precedent bans most state laws discriminating against noncitizens. There is little if any serious controversy among experts over this matter.
The more controversial issue is whether the Constitution provides any protection for noncitizens outside US borders, particularly in regard to immigration issues….
The Constitution reserves a few rights for citizens alone. Most notably, the Privileges and Immunities Clause of Article IV, Section 2, and the Privileges or Immunities Clause of the Fourteenth Amendment both protect the "privileges" and "immunities" of US citizens against various types of interference by state governments….
That a few constitutional rights may be specifically reserved to citizens underscores the broader principle that the vast majority are not. There would be no need to specify such a reservation if the Constitution had a default rule limiting rights to citizens.
In reality, the vast majority of rights outlined in the Constitution are phrased as general limitations on government power, not special protections for a specific class of people—be they citizens or some other group….
By far, the biggest exception to the courts' generally favorable attitude toward extending constitutional rights to noncitizens is the so-called "plenary power" doctrine, which gives the federal government broad power to adopt otherwise unconstitutional policies in its treatment of aliens, when it comes to immigration policy….
Since the late 19th century, the doctrine has been understood as giving Congress very broad power to authorize the exclusion of aliens for almost any reason, including many rationales that would be forbidden in virtually any other context.
The plenary power doctrine has no basis in the text or original meaning of the Constitution. With a few exceptions noted above, none of the rights protected by the Constitution are textually limited to citizens. And none include a blanket exception for immigration cases.