Should The Denial Of Rights To Aliens Cut Against Restoring The Privileges or Immunities Clause?

Section 1 of the Fourteenth Amendment includes references to both citizens and persons:

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 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.

The text provide that only the “privileges or immunities” of citizens are protected. By contrast, persons receive the protections of the due process of law and the equal protection of the laws. And the first sentence instructs that not all persons are citizens, but personhood can exist prior to birth.

Debates about restoring the Privilege or Immunities inevitably turn to the protection of rights for people who are not citizens. In McDonald v. Chicago, the Petitioner’s merits brief preemptively addressed this issue: “Nor would invocation of the Privileges or Immunities Clause, referencing the rights of ‘citizens,’ rather than under the Due Process Clause, which protects ‘person[s],’ necessarily deprive non-citizens of any rights.” In Timbs v. Indiana, the Petitioner argued that the Excessive Fine Clause of the Eighth Amendment should be incorporated through the Privilege or Immunities Clause. During oral argument, Justice Ginsburg asked if that argument “would leave out non-citizens?” Wesley Hottott, lawyer for the Institute for Justice, conceded the point. He said, “Yes, textually, Justice Ginsburg, that would leave out non-citizens, but, of course, Petitioner is a citizen, and that could be a decision for another day.”

When McDonald and Timbs were argued, I think views on immigration were quite different then they are now. Under the political climate of the day, as well as the composition of the Court, it would have been unthinkable for the Court to decide a case that denied certain rights to aliens. In both cases, only Justice Thomas was willing to venture down that path. Justice Gorsuch has signaled that the right to a jury trial might be such a privilege or immunity of citizenship, but he hasn’t signed on yet.

Today, however, the political climate with regard to immigration has changed. I don’t think it would be unthinkable for the Court to rule that only citizens have a certain constitutional right. During the Rosenkranz Debate yesterday, Professor Mary Anne Case cast doubt on recognizing parental rights as a privilege or immunity of citizenship, because non-citizens would not receive those rights. I don’t think that argument resonated, at all, in the ballroom. Indeed, for the first time that I can recall, the Federalist Society’s National Convention held a showcase panel on illegal immigration. Speakers included Gene Hamilton from America First Legal, who served as President Trump’s Deputy White House Counsel, and Trevor Ezell, who serves as Governor Abbott’s Counsel. They advanced a pro-restrictionist reading of the Constitution.

Should the denial of rights to non-citizens cut against restoring the Privileges or Immunities Clause? I don’t think so. The original meaning of the Constitution is the original meaning of the Constitution. We shouldn’t distort that meaning to satisfy present-day preferences.

Could Congress address this situation? By analogy, the Bill of Rights and the Fourteenth Amendment do not extend to Indian Tribes. For example, after Obergefell, Indian Tribes still had to decide whether to legalize same-sex marriage. The federal Bill of Rights and the Fourteenth Amendment likewise do not directly extend to Puerto Rico and other territories (though the nuances are complex).

Could Congress pass a statute guaranteeing the privileges or immunities of citizenship to resident aliens–that is, people in the country lawfully but who are not citizens? Without question, Congress could pass a statute that requires federal officers to secure these rights to aliens. But could Congress require the states to protect the privileges or immunities of aliens? Stated differently, could Congress waive a states sovereign immunity if it deprives an alien of the privileges or immunities of citizenship? I think there would be a Boerne problem. Congress cannot expand the scope of Section 1. If the text only extends these rights to citizens, then I do not think Congress could use its Section 5 powers to require states to secure these rights to noncitizens.

This thought experiment reinforces how challenging it is to map nineteenth century understandings of citizenship onto modern immigration laws. During the debates over the Fourteenth Amendment, there were discussions about Gypsies and Chinese workers. But the dynamics back then are very different from the dynamics today.

I think back to A.A.R.P. v. Trump, which ostensibly recognized due process rights for illegal aliens who were designated as illegal aliens. What process was due to these individuals? The Alien Enemies Act suggested that these aliens receive zero process at all. I have always thought this law was arguably a suspension of the writ of habeas corpus.

I also think back to debates about how illegal aliens affect representation. Justice Thomas’s concluded in Evenwel v. Abbott that “the Constitution did not resolve whether the ultimate basis of representation is the right of citizens to cast an equal ballot or the right of all inhabitants to have equal representation.”

These are all issues that are up for debate.