Do Undocumented Immigrants Have Constitutional Rights?

And, Are They Entitled to Birthright Citizenship

Introduction

The topic of constitutional rights and birthright citizenship for undocumented immigrants has been a subject of debate. This document aims to clarify these issues by examining the original intent of the U.S. Constitution and the 14th Amendment.

Do Undocumented Immigrants Have Constitutional Rights?

Before these questions became politically contentious, it was accepted that the U.S. Constitution was created by citizens for citizens. The founders wrote the constitution to establish a nation, not a world government (1). Certain people, politicians, and media have exploited ambiguities of the U.S. Constitution to subjugate original intent. These ambiguities are used to claim constitutional protections for undocumented immigrants. The truth is that these ambiguities do not exist. If we read the intentions of those who wrote the constitution, then it is abundantly clear that even legal immigrants who have not attained citizenship have limited constitutional protections, and undocumented immigrants have none at all.

The first seven words of the U.S. Constitution are, “We the People of the United States” (2). If it simply stated, “We the people,” then those claiming constitutional rights for undocumented immigrants would be correct. Instead, it identifies the “people” as those of the United States. The term “people” is not used as a plural noun that refers to everyone. It is capitalized as a proper noun, referring to a specific person, place, or thing. The natural question to ask is, “What is the specific person, place, or thing?” This question is addressed in the second part of the subject, "of the United States,” (a.k.a. citizens). This indicates that all plural nouns (informal names) that follow are linked to the initial proper noun (formal name). This is standard legal practice. In a legal motion, the initial section, referred to as the title or caption, specifically defines those involved with their formal names (proper nouns). Plural nouns listed later in the motion do not change this. Hence, making the motion specific to the plaintiff and defendant. In so doing, having the words, “people” or “persons” listed later in the motion does not allow anyone to walk off the street and claim title to the action. The U.S. Constitution, the country’s first legal document, is no different.

Birthright Citizenship

The 14th Amendment of the U.S. Constitution (3) reads as follows,

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.

People today debate birthright citizenship and the constitutional protections of undocumented immigrants by pointing out that the words, “persons” and the phrase, “subject to the jurisdiction thereof,” are ambiguous and refer to people other than U.S. Citizens. In a way they do, but they referred to U.S. Citizens and friendly aliens (legal immigrants). These words did not refer to undocumented immigrants. Want proof? Then, read on…

The U.S. Constitution is clear and unambiguous, but it can appear otherwise when read without context. To get the Constitution ratified by the states, the framers had to explain their intentions. The Federalist papers (4), written by James Madison, John Jay, and Alexander Hamilton during the Constitutional Convention, provide invaluable insight into their intent. Regarding amendments, additional clarifications were documented during hearings in both the House and Senate.

On March 9, 1866, Congressman John Bingham, author of the 14th Amendment, clarified that "Every human being born within the United States of parents not owing allegiance to any foreign sovereignty is a natural born citizen" (5).

On May 30, 1866, during Senate hearings on the 14th Amendment, Lyman Trumble, Chairman of the Senate Judiciary Committee, clarified that the phrase "Subject to the jurisdiction thereof" meant those not owing allegiance to any other country and subject to the complete jurisdiction of the United States (6) (i.e., United States citizens).

Both statements make it clear that birthright citizenship does not apply to undocumented immigrants. However, as shown below, legal immigrants (i.e., friendly aliens) who are undergoing the naturalization process have constitutional protections as a courtesy. Visitors and those on work visas also have some constitutional protections like habeas corpus (a.k.a. due process) when they apply. However, no constitutional protections apply to undocumented immigrants; and, as made abundantly clear by both the man who wrote the Fourteenth Amendment, and the Senate, undocumented aliens do not have birthright citizenship. In addition to breaking our laws the moment they set foot across the border, undocumented aliens do not go through the visa, immigration, or naturalization process. Hence, they have allegiance to the countries of their citizenship.

 It is worth nothing that the United States was the first national republic since the beginning of the dark ages. Consequently, the word, "citizen" was not in popular use. After the revolution, most citizens of the United States still referred to themselves as "subjects." Even 100 years later, the word "subject" was understood to mean citizen. Therefore, the wording "subject to the jurisdiction thereof" refers to United States subjects (a.k.a. citizens).

The Report of 1800

In the Report of 1800 (7), James Madison, a principal framer of the U.S. Constitution, argued against the Sedition portion of the Aliens Act while favoring the Alien Enemies portion. The primary purpose of Madison’s paper was to have the Virginia legislature vote to oppose the Sedition Act, which Madison felt would lead to overreach by the Federal government because it targeted American citizens and friendly aliens (i.e., legal aliens). Madison went so far as to advocate that friendly aliens (a.k.a. legal immigrants) should be given constitutional protections as a reward for their loyalty to the U.S. Constitution and obeying both international and municipal law. In his advocation, however, he acknowledged that friendly aliens were not entitled to these protections but should have them as a courtesy. Furthermore, Madison fully supported the Alien Enemies Act, which Madison deemed constitutional. Madison also supported the suspension of habeas corpus (a.k.a. due process) in cases of threat to public safety from rebellion and invasion. With over ten million unvetted undocumented aliens entering our country between 2021 and 2024, many of whom were from violent gangs, the crisis easily falls under both invasion and a threat to public safety. Madison’s support for the suspension of habeas corpus in cases of rebellion and invasion also means that the Biden Department of Justice had the constitutional authority to deny due process to the January 6th defendants once they were officially labeled insurrectionists, whether you agree that they were insurrectionists or not.

With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be constitutional; and it is accordingly against this act, that the protest of the General Assembly is expressly and exclusively directed. - James Madison, Report of 1800

When reading the preceding quote, you should keep in mind that the Patriot Act (see below) declared terrorism as a nation at war with the United States. Therefore, any non-citizen with terrorist ties (like Abrego Garcia) or who endorses terrorism (like Mahmoud Khalil) is considered an enemy combatant and, as Madison made clear, would fall under the Alien Enemies Act. Therefore, President Trump is well within his constitutional rights to deport Khalil to his home country of Algeria and deport Garcia to imprisonment in El Salvador.

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Patriot Act. Title IV, Subtitle B: Enhanced Immigration Provisions

“Amends the Immigration and Nationality Act to broaden the scope of aliens ineligible for admission or deportable due to terrorist activities to include an alien who:

1.       Is a representative of a political, social, or similar group whose political endorsement of terrorist acts undermines U.S. antiterrorist efforts

2.      Has used a position of prominence to endorse terrorist activity, or to persuade others to support such activity in a way that undermines U.S. antiterrorist efforts (or the child or spouse of such an alien under specified circumstances)

3.      Has been associated with a terrorist organization and intends to engage in threatening activities while in the United States.”

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Madison noted that certain constitutional protections, such as habeas corpus, should extend to legal immigrants. He even went so far as to say that friendly aliens (a.k.a. legal immigrants) should have full constitutional protections if they remain law abiding during the process of naturalization.

1. Madison concedes that habeas corpus (due process) can be suspended in the case of rebellion and invasion.

The constitution ordains that habeas corpus shall not be suspended, unless when the public safety may require it in case of rebellion or invasion.

2. Madison concedes that the Federal Government has a constitutional right to protect states from invasion.

Congress, are, by the constitution, to protect each state against invasion; and that the means of preventing invasion, are included in the power of protection against it.

3. Madison states clearly that immigrants do not have constitutional protections. Even so, he goes on to state that this does not allow Congress to abuse them.

   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.

4. Madison infers that as long as immigrants are subject to our laws they should also be subject to our constitutional protections. Clearly, this does not apply to undocumented immigrants who violate the law of the land the moment they step over the border.

   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, temporary obedience, they are entitled in return, to their protection and advantage.

Naturalization

Our founders made it clear that all are welcome to this land of freedom and prosperity if they are law abiding and willing to contribute. This is why they charged Congress to create a naturalization process (U.S. Constitution, Article I, Section 8, Clause 4). If the intent were for all immigrants to have the same rights as citizens, then there would be no need for naturalization in the first place.

The Immigration Act of 1929 further supported the need for naturalization. Title 8, Section 1325 of the U.S. Code states that illegal entry into our country is a misdemeanor for the first offense and a felony for a subsequent offense. These crimes are punishable by deportation, imprisonment, or both. This Act legally justifies President Trump’s deportation of undocumented immigrants for the simple act of entering our country illegally. As for due process, all that need be established is for the immigrant to be a non-citizen without a valid passport stamp or a US Visa.

Natural Rights

An immigrant’s lack of constitutional rights does not justify mistreatment. The founding of the United States is based on the principle that all people are endowed by God with the natural rights of life, liberty, and the pursuit of happiness. These natural rights supersede constitutional authority and are inherent to everyone providing they do not violate the law or the rights of others.

Why the Debate?

The U.S. Constitution is explicitly defined; however, debates arise due to the influence of partisan politics and crony capitalism within representatives, courts, media, and educational institutions. Numerous institutions and politicians have both financial and political incentives to create ambiguity and confusion. The effort to assert that the constitution applies to undocumented immigrants is led by influential individuals who shape public discourse. They will argue that intent is irrelevant and that the word "persons" in the Fourteenth Amendment is all that matters. However, intent is crucial. When an author writes a book, the reader's interpretation does not change the author's intent.

Sixteenth Amendment

There is a growing movement claiming exemption from income tax because the Sixteenth Amendment uses the word "taxpayer" instead of "citizen." If we applied the same logic as proponents for undocumented immigrants, no citizen should pay income tax. However, the same courts that rule in favor of constitutional protections for undocumented immigrants unanimously rule against those evading income tax based on the same ambiguous loophole.

Second Amendment

The Second Amendment states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. If "persons" in the Fourteenth Amendment covers everyone, then "people" in the Second Amendment should be interpreted similarly. Nonetheless, the popular narrative promotes gun control. In this case, however, the Amendment is noticeably clear. The plural noun "people" refers to the proper noun in, "We the People of the United States," meaning all citizens have the right to bear arms.

Opponents will say the phrase, “A well regulated Militia” refers to the armed forces. This logic is severely flawed in two ways. Originally, the people constituted the militia. More importantly, if you break the sentence down grammatically, then “the right of the people to keep and bear arms” is the subject of the sentence (the most important part). “Shall not be infringed,” is the predicate of the sentence (second most important part). “A well regulated Militia being necessary to the security of a free State,” is the prefatory clause (the least important part of the sentence). Grammatically, the preface is superfluous because its exclusion does not change the meaning of the sentence.

Control and Division

By pushing the narrative of constitutional rights for undocumented immigrants, those with something to gain are attempting to change popular opinion. This is nothing new. Edward Bernays, nephew of Sigmund Freud, mastered the art of mass manipulation and became the king of advertising, public relations, and propaganda. Bernays was a man whose influence shaped today’s society as a key adviser to major corporations, politicians, and governments. Among other things, Bernays taught politicians the art of fearmongering and pioneered the practice of using media to drive public opinion.

Bernays believed that fulfilling people's unconscious irrational desires without them knowing they are being manipulated is key to control. He argued that understanding the mechanism and motives of the group mind allows for control and regimentation of the masses according to one's will.

The systematic study of mass psychology revealed the potential of an invisible government of society by manipulation of the motives of the group mind. The group has mental characteristics distinct from those of the individual. So, the question naturally arose: If we understand the mechanism and motives of the group mind, is it not possible to control and regiment the masses according to our will without their knowing it.

Propaganda, 1928. Edward L. Bernays

Conclusion

I hold no resentment toward immigrants—whether legal or otherwise. In fact, I deeply empathize with their struggles. My grandparents arrived in the United States during the Great Depression, spending every penny they had to travel in stowage from Italy. Back then, there were no entitlements. My grandfather took on menial jobs, shoveling snow in schoolyards for just twenty-five cents a day—an act that broke the heart of my father as a young boy. The only aid available was the bread lines, where my grandmothers waited for hours to bring home a simple loaf of bread to feed their families. I remember my parents’ stories of their childhood—five siblings huddled around a coal stove in a tiny bedroom, struggling to stay warm.

Years ago, while traveling for work, I stopped at a small bodega in Brisbane, California. There, I saw an immigrant mother with her two young children, carefully budgeting every dollar to buy food. As her son, around eight years old, glanced at the dime-store toys, he murmured sadly, “I wish we were rich.” That moment struck me deeply. At the time, I was in the midst of a difficult divorce and financially struggling myself. Yet, I had never wished more for a million dollars—just so I could make that little boy’s wish come true.

Why am I writing this? Because the Constitution and the laws of this country were established to insure domestic tranquility and promote general welfare. This benefits citizens, immigrants, and visitors. A legal system for immigration already exists. If my impoverished grandparents could endure the costs and delays, so too can others. Among the waves of undocumented immigrants, many may be hardworking individuals—like that mother and her children. But alongside them come those who seek to harm this country, threatening the very institutions that could help that mother and her children achieve a better life.

It saddens me that some who advocate for undocumented immigration oppose the very opportunities that would enable immigrants to thrive. They reject initiatives such as Trump’s tariffs and efforts to restore the U.S. as a manufacturing powerhouse—policies that could empower immigrants with stable, well-paying jobs. Instead, they seem content with the idea of immigrants working for meager wages, picking crops under the scorching sun or cleaning homes, rather than earning a fair wage through dignified labor in manufacturing.

1.      Library of Congress: U. S. Constitution, Article I, Section 8; Article IV, Sections 3, 4 (The Constitution of the United States of America. | Library of Congress)

2.      Library of Congress, Preamble (The Constitution of the United States of America. | Library of Congress)

3.      Library of Congress, 14th Amendment (U.S. Constitution - Fourteenth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress)

4.      Library of Congress, Federalist Papers (Full Text of The Federalist Papers - Federalist Papers: Primary Documents in American History - Research Guides at Library of Congress)

5.      Congressional Globe #6 - The Congressional globe / United States Congress ... 39th congress 1st session pt.4 1865-1866. - Full View | HathiTrust Digital Library

6.      Library of Congress, Senate Debate Minutes – May 30, 1866, No Title - May 30, 1866 | Congress.gov | Library of Congress

7.      The Report of 1800. The Report of 1800, [7 January] 1800