The preamble to our Constitution identifies those to whom it applies with the opening phrase “We the People of the United States”. But who exactly are these people? Recent disputes related to immigration, and in particular to illegal immigrants, make this a crucial legal issue. Focusing more closely, I want to address this question. “What exactly makes someone who is not a US citizen or a qualified alien eligible for constitutional protections?” Two Supreme Court decisions are most often quoted in reply to this question.
In Kwong Hai Chew v. Colding (1953), the Court found in an 8-1 decision that a permanent resident of the United States could not be deported without a hearing under the constitutional right to due process.
In Plyler v. Doe (1982), the Court held that a Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. The issue of jurisdiction was found to be irrelevant.
But note that both of these cases were understood to apply to persons who are residents of the US. So the issue devolves into what constitutes residency.
Consider the following hypotheticals and see if you can discern a bright line that clearly indicates residency in the US. Have any of the following individuals established residency that is sufficient to qualify for constitution protection?
Someone who approaches the US border and plants his left foot firmly on US soil?
Someone who is standing in Mexico, while waving one foot in the air over US soil?
Someone who visits the US Embassy in Germany? (Our embassies are sovereign territory.)
Someone flying over the Aleutian Islands on a trip from Canada to the Far East?
Someone who trips on a tree stump in Canada and lands on US soil?
Someone who falls overboard into US territorial waters while exercising free rights of passage?
Can you answer these questions confidently, using a clear and unambiguous rule? I believe that I can. The writers of our Constitution never intended that incidental or even deliberate touching of US territory in and of itself confers any kind of claim for Constitutional protection whatsoever. They intended this to apply only to those who purposefully enter our territory, with our explicit or implicit permission, and with the clear intention to remain more than momentarily. There is no other possible reading of either the Constitution or our founding documents like the Federalist Papers. Thus, my answer to all of these questions is “None have established residency.” Do you disagree?
Now consider how the preceding might apply to those sneaking over our southern border. At which point will they have established residency? We have both laws and customs that grant a hearing for claims of refugee status from prospective immigrants. But as far as I know, we have no laws that grant status to those who can’t find sustenance where they now live, or who are at risk from endemic criminality in their homeland, or who simply want a better life for themselves and their families. For those with valid refugee claims, we have policies and procedures in place to process them. But none involve sneaking over our borders.
It is fair to respond that our policies are sometimes overly restrictive and are almost always ponderously slow. But if we can truly claim to be a nation of laws, then these criticisms cannot override legal considerations.
The bottom line seems to be that people trying to avoid our ports of entrance don’t achieve resident status thereby, and hence they are not yet one of “We the People of the United States”. We can grant them due process at our discretion, but I see no constitutional requirement to do so. However, it remains an open question for those clever or lucky enough to escape detection and actual take up residency within our borders.
In his usual bombastic manner, President Trump has called for prompt expulsion of those caught while violating our borders, without due process of law. This has been widely condemned, but I am not so sure that he is entirely off-base with this idea. An old Southern expression comes to mind, “Even a blind hog can find an acorn once in a while.”