304 – TALK – 304 is more than just a text line. It’s a daily cacophony that provides a window into what Talkline listeners are thinking and feeling. A valuable tool. What’s striking, though perhaps not surprising, is the frequent dichotomy of views on the issues of the day. More often than not, opinion splits nearly down the middle.
Occasionally, however, a message is overwhelmingly clear. Thursday offered such an example: “The Constitution does not apply to non–United States citizens.”
That view may be understandable, but it is not accurate.
The Constitution, in its own text, says otherwise. Take the Fifth Amendment (truncated):
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb… nor be deprived of life, liberty, or property, without due process of law…”
Notice the phrase: “No person,” not “no citizen.”
Some might argue the Founders were speaking only in a general sense; that “person” was meant to mean “citizen.” But the U.S. Supreme Court has clarified this issue many times.
One of the clearest rulings came in Yick Wo v. Hopkins (1886). The case involved a San Francisco ordinance that appeared neutral on its face but was enforced in a racially discriminatory way against Chinese immigrants. The Court ruled that this violated the Equal Protection Clause of the Fourteenth Amendment. Importantly, the Court stated that constitutional protections apply to all persons within U.S. jurisdiction—citizens and non-citizens alike.
That ruling still stands.
Of course, certain rights—like voting—are reserved for citizens. But the notion that non-citizens, including those here illegally, have no due process rights is simply wrong.
A better question is whether due process for non-citizens is good policy. In my view, the answer is yes.
Due process is more than a right for Americans; it’s a principle of human dignity and self-governance. For decades, America has promoted these ideals abroad. To deny them at home undermines our credibility and our constitutional integrity.
The phrase “practice what you preach” was common in my youth. It applies here. If America believes in due process, that belief must extend beyond the bounds of citizenship. To deny one person due process is to create a mechanism to deny it to all.
But, if America wishes to roll back due process protections for non-citizens, the Founders provided a method to do so—Article V, the amendment process.
It would be a dangerous move. However, it would at least respect the process. Why isn’t that part of the discussion? Because it’s not easy to do and it takes time; it should not be easy to do, and it should take time. Easier is ignoring – whether by a citizen or president – the Rule of Law.
That sets us on a perilous path.
When Mrs. Powel asked what form of government the Constitutional Convention had given the people, Benjamin Franklin replied: “A republic, if you can keep it.”
Can we?