1. Are Immigrants Covered By The U.S. Constitution?
Victor C. Romero
Penn State Law

2. Yes, immigrants are protected by the U.S. Constitution.
The brief answer is “Yes.” When it comes to key constitutional provisions like due process and equal treatment under the law, the U.S. Constitution applies to all persons – which includes both documented and undocumented immigrants – and not just U.S. citizens.
Outside the context of immigration policy, the Constitution limits government power over individuals but this does not mean that constitutional rights are absolute.

3. What are the Constitution’s goals?
To create a national government and divide its (limited) power among three co-equal branches (the Executive (President), the Legislative (Congress – House and Senate), and the Judiciary (the U.S. Supreme Court).
To respect and maintain our federalism, the idea that the states preceded the national government and are co-equal sovereigns with it.
To protect individual rights by limiting government power.

4. Who has the final say as to what the Constitution means?
The United States Supreme Court
Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

5. Individual Constitutional Rights Are Not Absolute (not even free speech)!
The First Amendment reads: “Congress shall make no law … abridging the freedom of speech.”
By its terms, the text only limits Congress.
But the Supreme Court has extended its reach to limit state restrictions on free speech (Gitlow v. NY, 1925).
Notwithstanding the plain language of the text, the Supreme Court, through its Marbury power to “say what the law is,” establishes rules and doctrines that both expand and limit the reach of constitutional provisions.
Example: In a series of other decisions, the Supreme Court has also said that the following types of speech are not protected: obscenity, fighting words, intentional misrepresentation, threats, and defamation. Even possessing child pornography – not only its production – is unprotected expressive speech.

6. Immigrant Rights: To what extent may noncitizens receive due process and equal protection under the law? Because they are not U.S. citizens, don’t they enjoy more limited rights?
We see this tension between citizenship and noncitizenship in Section 1 of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall … 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.”

7. What is the scope of noncitizens’ individual rights?
When it comes to the due process and equal protection rights of noncitizens, the federal government through its lawmaking authority in Congress has plenary power to select the terms by which noncitizens may enter the country and when they must leave. Modernly, a rule of reasonableness acts as a check on that broad authority.
When it comes to state legislation, however, the Court has been more willing to uphold immigrant rights against discriminatory laws. The high water mark of the Court’s precedent is Plyler v. Doe (1982), in which the Court struck down a Texas law that prevented undocumented children from receiving a K-12 public education.

8. Conclusion
Yes, the Constitution applies to immigrants – even undocumented ones – but that does not tell you how far its individual rights protections extend (for not even free speech rights are absolute). Congress’s power is greatest over immigration policy as no noncitizen has the right to immigrate, but the due process and equal protection clauses apply to all persons, and so states – and even the federal government – know that they must abide by these restrictions on their power.