The question of whether due process is a right reserved solely for American citizens and legal residents invites a deeper exploration of constitutional protections and their implications. Here’s an interesting question I received from a CSCC participant:
“Is it possible for Congress to pass a law stating that ‘due process’ is a right for only American citizens and others who are here legally? If so, what is that provision in the U.S. Constitution?”
Since I am not a legal professional, but a Civics educator, let’s discover a civics answer to a multi-faceted question.
The Constitutional Framework of Due Process
First, the writer asks if it is possible for Congress to pass a law about due process and legal citizens. The short answer is that today, due process is granted to anyone in this country. There are various opinions on this matter, so let’s take a moment to examine the issue in more detail.
Congress has the authority to pass laws that define the scope of rights, including due process, for American citizens and legal residents. However, the U.S. Constitution already provides a framework for due process rights. It’s found in the Fifth and Fourteenth Amendments.
Fifth Amendment: This Amendment in the Bill of Rights states that “no person… shall be deprived of life, liberty, or property, without due process of law.” This applies to Federal actions.
Fourteenth Amendment: This is one of the slave amendments. It says that no state shall “deprive any person of life, liberty, or property, without due process of law.”
Next, we must define the words “person” and “due process.”
Due process of law is the entitlement that all U.S. citizens have to be treated fairly in the judicial system. In the Fifth Amendment, due process takes place within the court system. The Fourteenth Amendment treats due process as a natural right that protects American citizens from government interference with their ability to live their lives, unless their actions are illegal.
Interpretations of ‘Person’ in U.S. Law
The term “person” in these amendments has been interpreted by the courts to include all individuals within the jurisdiction of the United States, regardless of their citizenship status. This means that due process protections apply to everyone, including non-citizens and undocumented immigrants, as long as they are within U.S. territory.
My question is, “Which courts interpreted this definition of a person? Here’s one from the Supreme Court of the United States:
“One famous decision is the 1982 U.S. Supreme Court case of Plyer v. Doe, in which Texas revised its laws to exclude the children of undocumented immigrants from being eligible to attend K-12 school. The Court held that the children of undocumented immigrants are “people” as stated in the 14th Amendment, and under the Equal Protection clause one’s immigration status is not a sufficient rational basis for denying benefits afforded to other residents. Therefore, non-citizen children must be afforded a K-12 education.” (1)
The Ongoing Debate: Rights, Responsibilities, and Civic Engagement
The two textbooks I consulted mention that the Fifth and Fourteenth Amendments apply only to American citizens. However, I also consulted law dictionaries and the definitions given by law firms. (See footnotes). These sources said that courts have rendered decisions stating that anyone in this country is entitled to due process of law. Note that immigration laws only apply to non-citizens, whose due process rights were given at the border, although U.S. law still regards Illegal status as still illegal. Additionally, national and state elections are restricted to American citizens only. At least one state has permitted undocumented or unlawful people to vote.
Perhaps you will find answers to complex questions with some time and research. If you find the process confusing, please note that some questions currently have unclear answers. We the People must continue to ask the tough questions and work to have elected officials provide definitive answers.
This is Common Sense Civics and Citizenship. 🇺🇸
I used the following resources to provide the above information:
https://legaldictionary.net/5th-amendment/
https://constitution.findlaw.com/amendment5/annotation05.html
(1)https://www.maniatislawoffice.com/blog/2018/08/do-non-citizens-have-constitutional-rights/
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