Posted by Eugene Volokh:
Constitutional Rights of Non-Citizens:
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1235007104
I've heard many people suggest that the Bill of Rights protects only
citizens, and not legally admitted aliens. Some have argued that
surely the Framers would not have understood the Bill of Rights as
protecting noncitizens.
It turns out, though, that at least one pretty significant Framer --
that would be James Madison -- took the opposite view. Here's Madison,
from his Report on the Virginia Resolutions, which criticized the
Alien and Sedition Acts of 1798:
Again, it is said, that aliens not being parties to the
Constitution, the rights and privileges which it secures cannot be
at all claimed by them.
To this reasoning, also, it might be answered, that although aliens
are not parties to the Constitution, it does not follow that the
Constitution has vested in Congress an absolute power over them.
The parties to the Constitution may have granted, or retained, or
modified the power over aliens, without regard to that particular
consideration.
But a more direct reply is, that it does not follow, because aliens
are not parties to the Constitution, as citizens are parties to it,
that whilst they actually conform to it, they have no right to its
protection. Aliens are not more parties to the laws, than they are
parties to the Constitution; yet, it will not be disputed, that as
they owe, on one hand, a temporary obedience, they are entitled in
return to their protection and advantage.
If aliens had no rights under the Constitution, they might not only
be banished, but even capitally punished, without a jury or the
other incidents to a fair trial. But so far has a contrary
principle been carried, in every part of the United States, that
except on charges of treason, an alien has, besides all the common
privileges, the special one of being tried by a jury, of which
one-half may be also aliens.
The Supreme Court has endorsed Madison's view at least since [1]Wong
Wing v. U.S. (1896) as to the criminal procedure provisions, and in
[2]Yick Wo v. Hopkins (1886) (also unanimously) as to the Equal
Protection Clause racial equality principle. Aliens might be
deportable for their speech (see [3]here for more on that question),
but they can't be otherwise punished for it, nor can they be
criminally prosecuted in the civil justice system without the normal
constitutional protections. (The question of when military justice may
be applied to them is a separate and complicated issue, and one that
[4]may potentially relate to citizens as well as aliens.)
Now I'm not a historian of the matter, and it may well be that the
matter was unclear. Certainly Madison was arguing against people who
took the contrary view; perhaps they were in the solid majority on
this. But at the very least one shouldn't just casually assume that
the Bill of Rights must of course apply only to citizens, when the
principal drafter of the Bill of Rights took the opposite view.
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=163&invol=228
2. file://localhost/var/www/powerblogs/volokh/posts/1235007104.html
3. http://volokh.com/posts/1123520953.shtml
4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1
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