Thursday, June 16, 2011

The Bill of Rights and Illegal Immigrants

Gerard N. Magliocca

This week a divided panel of the Fifth Circuit held in United States v. Portillo-Munoz that illegal aliens are not part of the "people" protected by the Second Amendment and thus have no constitutional right to bear arms. Since the term "people" is also used in the First, Fourth, and Ninth Amendments, this decision has sweeping implications. I thought I'd make some preliminary observations about the case.

First, the decision raises the question of how broadly Pyler v. Doe should be read. Pyler held that undocumented workers (I'll use every synonym in this post) are "persons" for purposes of the Equal Protection Clause. You don't have to be a genius to see how this could mean that they are "people" with respect to other constitutional provisions. (Indeed, the dissent in Portillo-Munoz made this point.) On the other hand, "people" could be read as a term of art that means more than just the plural of person. Dred Scott, for example, argued that "[t]he words ‘people of the United States‘ and ‘citizens‘ are synonymous terms." That interpretation would not stand up today, but if people does mean something more than persons, then lawful residence could well be the place to draw the line.

Second, an illegal alien claim against state action (as opposed to Portillo-Munoz's attack on a federal statute) is one of the rare instances where the method of incorporating the Bill of Rights matters. If the Bill had been applied to the States through the Privileges or Immunities Clause of the Fourteenth Amendment, then those protections would apply only to citizens. Since the Court used the Due Process Clause for incorporation, however, we must figure out how the term person, which of course is in that textual provision, relates to the word people in other textual provisions.

Third, I am unpersuaded by the Fifth Circuit's argument that "people" can mean different things in different parts of the Constitution. It may be that illegal aliens should get no protection from the Bill of Rights or less than what those who are lawfully here get, but I don't see any support for the proposition that illegal aliens would, for example, get Fourth Amendment rights but no First or Second Amendment rights.

UPDATE: Come to think of it, the fact that Section One of the Fourteenth Amendment uses the word "persons" in the Citizenship Clause could be evidence that "people" means something more than "persons."


"If the Bill had been applied to the States through the Privileges or Immunities Clause of the Fourteenth Amendment, then those protections would apply only to citizens."

Various people raised various ways around that sort of thing, including the Equal Protection Clause (alienage is a suspect class) or due process (that covers persons) for fundamental rights (which would cover at least most of the core BOR protections).

The ruling anyway doesn't seem to follow how Justice Kennedy treats the term "the people" and it is prime for reversal en banc.

[I cite Kennedy since in various cases he is the swing vote when the basic question arose.]

It seems to me that illegal immigrants should, in fact, get a great deal of protection from the Bill of Rights. It's just that they should get it, upon their discovery, for the duration of their bus ride to the nearest border.

The only reason this is a matter of any concern is that we're not enforcing our immigration laws. Otherwise the relevant population would be comparatively small.

Well Brett, maybe that's because the immigration laws of this country are horrendously inhumane, racist, and any idiot knows they are unenforceable.

Or maybe it's because businesses which profit from a pool of cheap labor which dares not report abuse are buying our politicians. Yeah, I think that's it.

Perhaps Brett can explain his views on illegal immigration to his bride regarding Jose Antonio Vargas, a Pulitzer prize-winning journalist and undocumented immigrant from the Philippines.

The Court defined "the people" in U.S. v. Verdugo-Urguidez.

I thought that there were no laws governing immigration, as opposed to citizenship eligibility, until the late 19th century.

If so, it doesn't seem possible to draw Constitutional distinctions between illegal immigrants and non-citizens legally present in the country.

It seems to me that illegal immigrants should be really a lot to protect the Bill of Rights. It's just that should get it when they find them, for their bus ride to the nearest border. The only reason this is a matter of no concern is that do not comply with immigration laws. Otherwise, this population would be relatively small.

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Call me a glass half-full kind of guy, but it seems to me that with dumber lawyers, people are more likely to follow the law.

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