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Constitutional Rights of International Students and
Scholars
People often
speak about the Constitution and their "Constitutional Rights" or
"Civil Liberties." Much of what people believe about these rights
and liberties comes from films, television, and similar media
sources. Very few people have taken the time to read the
Constitution of the United States and to understand their rights and
how they work.
Lawyers, judges,
and politicians spend years, even centuries in some cases,
discussing the "intent" of particular parts of the Constitution and
how the document relates to modern times and current legal issues.
We will not
attempt a full discussion of all of those issues here, but we will
look at some basic principles and how those principles affect
international students and scholars.
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Q1. |
Constitution, Bill of Rights, Civil Liberties. It is
confusing. What is what? |
| A1. |
The Constitution is the full document establishing the
legal existence of the
United States and
the rules under which the country operates. It creates the
legislative, judicial, and executive branches of the government –
the "separation of powers" that helps prevent any one of the
branches from becoming too powerful. |
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The Bill of
Rights is the first ten amendments to the Constitution. They
were adopted as a group as part of the original document on 15
December 1791. The Bill of Rights guarantees most of the individual
freedoms people usually think of when they talk about their
Constitutional Rights. |
"Civil Liberties"
is a popular term used to describe the general collection of
individual rights guaranteed under the Constitution. Most
people are familiar with the term through the American Civil
Liberties
Union (ACLU)
http://www.aclu.org/. The
ACLU works to protect individual Constitutional Rights from
the encroachment of laws passed by Congress or by individual
states or decisions made by judges or actions by the
President that might restrict or deny those rights.
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Q2. |
As
an alien, not a citizen or national of the
U.S.,
do I have Constitutional Rights? |
| A2. |
The Constitution refers to three kinds of people to whom the
Constitution applies: citizens, persons, and the people. Those
distinctions mean that aliens have some rights, but not all. In
looking at Constitutional Rights, note first to whom the discussion
applies. But remember also that legal scholars often disagree on
exactly how and to whom the Constitution applies.
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| Q3. |
What
are some of the rights I have as an alien? |
| A3. |
The
most common ones discussed by immigration and civil rights
attorneys are: |
First
Amendment – freedom of expression
Fourth Amendment – protection from unreasonable search and
seizure Fifth Amendment – protection against
self-incrimination
Fourteenth Amendment – guarantee of "due process" or "equal
protection" under the law |
If you are an alien
who has been admitted to the U.S., then generally you have these
rights. If you entered the U.S. illegally and were, therefore, not
properly "admitted," then some of the protections do not apply to
you. The American Civil Liberties Union (ACLU) has prepared an
excellent summary of these rights and posts it on its web site in
several languages. For a list of languages and links to the
documents go to the ACLU web site at:
http://www.aclu.org/features/f010202a.html.
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Q4. |
I have heard that
South Alabama reports information on me to the Department of Homeland Security.
Isn’t that a violation of my civil rights? Don’t I have a
right to privacy? |
| A4. |
South Alabama
protects your information and your privacy as much as possible
within the law, but South Alabama is required by law to make certain
reports on international students and scholars.
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| Q5. |
I have been admitted to
South Alabama as a student or invited to
South Alabama as a
professor or researcher. I pay my tuition or I do the
research or teach as I agreed to do. Don’t I have as much
right to be here as any other student or scholar? |
| A5. |
Under the basic rules of international law, every state
(country) has the sovereign right to determine who may enter and
remain within its borders and under what conditions. In general, a
person who is not a citizen of a country has no "right" to be in
that country. |
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As an alien in
temporary status such as F, J, H, O and so on, your presence in the
U.S. is a temporary privilege granted to you. You do not
have the "right" to be in the
U.S. Similarly,
U.S. citizens studying abroad in your country have no "right" to be
there, but only the permission to be there provided they qualify for
admission and follow the rules of your country to remain there. |
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Persons are
permitted to apply for admission to the U.S. at ports of entry and,
if admitted, are permitted to remain here according to the
conditions of the visa status in which they were admitted. For
example, if you were admitted as an F-1 student and hold that
status, then you must carry a full course load, limit your work only
to that employment specifically authorized by the school or by the
Department of Homeland Security (DHS), and meet all the other legal
obligations that go with F-1 status. Similarly, as a J-1 or H-1B
scholar or employee, you must meet all of the legal obligations of
that status.
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| Q6. |
What are some other ways in which my rights or privileges are
different from those of citizens? |
| A6. |
Let’s
take a look at just a few. |
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Travel.
You are permitted to travel in the
U.S.
to different cities and states without prior approval from
any government agency. You are permitted to use pubic
transportation, to have a driver’s license, and to rent a
car, within federal and state law and within the business
practices of transportation lines and car rental agencies.
But remember that when you travel, even in the U.S., you
must carry your alien identification and registration
documents with you and present them to appropriate law
enforcement officers upon request. Citizens are not required
to carry citizen identification documents. |
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Residence
and Address.
You are permitted to rent an apartment or buy a house
according to your choice, but regardless of where you live,
you are required to report your address to the DHS within
ten (10) days each time you move. Citizens are not required
to report their address changes to federal authorities in
this way, though most report to the post office to be sure
their mail gets forwarded. |
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Crimes, civil actions, and law enforcement.
If you are arrested, you have a right to have an attorney,
but the government is not required to pay for your attorney.
You must cover that expense yourself. You are entitled to
the protection of the law and you are subject to the rules
of the law. You may sue people in court or they may sue you.
Even though you may use the court system or be tried in it,
you are not permitted to serve on a jury. |
Politics.
You may campaign for people running for public office,
contribute to their campaigns, or attend rallies or
demonstrations for political causes. However, you are not
permitted to vote, or to run for most public offices, or to
hold certain jobs restricted to citizens.
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|
Q7. |
I keep up with the news, read the papers, and watch TV and
films. I know a little about freedom of speech, unlawful
search and seizure, protection against self-incrimination,
and so on. But what is the real story, the real language? |
| A7. |
The first ten amendments composing the Bill of Rights are
generally short, so let’s take them one at a time and look at the
sources of so many well-known concepts and phrases. Note that the
punctuation and spelling are sometimes different in the English
language of earlier centuries. We will use examples from current
news and issues in the
U.S. |
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First Amendment |
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"Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances."
Notice that
these rights of freedom of religion, of expression, and of assembly
and political activism so central to American thought all appear in
the same First Amendment. Remember that the writers had recently won
independence from a legal and political system that had a history of
punishing people who spoke against the government and that had
historically established a state religion. Although much of U.S. law
is based on old English law, by putting all of these rights together
as the first amendment, the writers were affirmatively protecting
the fundamental rights of people to follow their own conscience in
religion, politics, and the general living of their lives, and to
speak out in favor of or in opposition to the government or to what
other people believed or how they behaved.
These rights do
have limits. People must exercise their rights within the law and
without undue harm to others or infringement of other’s rights.
Common examples one often hears include:
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"Freedom of speech does not give a person the right to
yell ‘Fire’ in a crowded theater." A current example might
be the law that some have tried to enact against "hate
speech." I have the right to say, "I hate X." But do I have
the right to say, "I hate X. Let’s meet this afternoon and
go over and beat up X."? The first may be a statement of
belief while the second may be an incitement or conspiracy
to commit a crime.
"Freedom of religion does not give a person the right to
engage in human sacrifices." But the distinctions are not
always so obvious. In some religions people sometimes use
animal sacrifices as part of their worship. Some states
attempted to stop the practice by invoking laws regarding
cruelty to animals. Members of these religions and their
supporters successfully argued that they have a
Constitutional right to worship in this way, and further
that their religious practice is no crueler than the normal
commercial slaughter of animals for food. Consider the
discussion about prayer in the public schools. Some very
devout Christians would like to set aside a time for prayer
at school. If the school asks someone to say a prayer within
a certain religious framework, then the state (the school)
is imposing a particular religious practice on the group, an
act prohibited by the Constitution. But would it be
acceptable to set aside a time for "meditation" and to let
each student spend that time in his/her own religious
practice? Would enforced "meditation" violate the rights of
atheists? Would it make a difference if the period were
called "private" time instead of "meditation" time? If the
federal government uses tax money contributed by all people
to give to parents to send their children to private
religious schools, does such a diversion of public funds
from the public schools constitute government support for
religious schools in violation of the Constitution? Suppose
my religion requires me not to use the services of a
physician, and instead to depend only on prayer for healing.
If my child develops appendicitis and dies for lack of
medical care, have I murdered my child through neglect or
just held true to my beliefs for myself and my family? What
right or responsibility does the government have to
intervene?
"Freedom of the press does not mean that the press can
print anything it wants and distribute that information
anywhere it wants without consequence." While the press in
the
U.S. has
wide latitude, it must abide by certain rules and is subject
to certain restrictions and punishments. A court may issue a
"gag" order instructing the media not to publish the names
of victims of a crime if that reporting would do further and
greater harm to the victims, or not to publish certain
information while a trial is ongoing. If a journalist or the
media publishes libelous or slanderous stories about
someone, that person has the right to sue the journalist or
the media and demand retractions and compensation. The
publishing of pornographic literature and pictures is
protected by the Constitution, but different cities and
states can pass laws to limit how that material is sold or
distributed. The information distribution capabilities of
the Internet bring these discussions to our homes and
offices in completely new ways.
"Freedom of assembly does not give a person the right to
assemble a mob and attack other people." Consider the
current example of the protest demonstrations around
abortion clinics. The protestors have a right to assemble
peaceably, but they do not have the right to block entrances
to the clinics to prevent people from using their services.
People in a labor union have the right to assemble and form
a picket line outside their employer’s place of business to
protest wages or working conditions. They do not have the
right to prevent other people from entering that place of
business. |
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Second Amendment |
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"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."
This is the one
of the core elements of the division between those who want strict
gun control and those who want general access to firearms. Those who
favor private gun ownership argue that "the right of the people to
keep and bear Arms, shall not be infringed" means just that - the
full right to own arms of various kinds. In general that discussion
has focused around guns, but the amendment refers to arms, not just
to guns. Those who favor gun control argue that the purpose of the
amendment is to maintain a militia for the defense of the nation,
and that the existence of a permanent military removes the need to
maintain a militia. Therefore, the people need not have access to
arms.
But a deeper
discussion exists as well. Remember the context of the writing of
this document. The new country had only recently emerged from a war
of independence in which the citizen soldiers had resisted and
overcome an organized professional military. The writers knew from
experience that private arms gave people one of the tools to resist
tyranny, even the possible future tyranny of one’s own government.
Some argue that the framers of the Constitution wanted to protect
the right of each person to own arms for his or her own use, and, at
the same time, saw it as each person’s duty to help in maintaining
"the security of a free State."
Congress has
made laws that limit the kinds of arms people can own, that specify
the prior acts or characteristics (such as criminals) who are
prohibited from owning arms, and that set other standards and
controls related to arms ownership. So far, many of these laws have
generally withstood constitutional challenges, which means that the
limitations have so far not been judged to be unconstitutional.
So, does the
Second Amendment mean that I should be allowed to own a medieval
broad sword, an antique cannon, a handgun, an automatic rifle, hand
grenades, or a rocket launcher? Does the state have the right or
even the obligation to limit the kinds and numbers of arms I may own
as a way of protecting the general safety of the population? Anyone
who follows U.S. domestic politics on this issue knows that this
discussion is far from over.
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Third Amendment |
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"No Soldier
shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be
prescribed by law."
The Third
Amendment prevents the military from taking over private homes and
using them for its own purposes or forcing people to house the
military for free. It is also an element of the idea expressed more
directly in the Fourth Amendment that the government must abide by
the law and stay out of the affairs of the people.
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Fourth Amendment |
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"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized."
Note the key
familiar phrases and concepts:
Protection from "unreasonable searches and seizures."
The requirement that law enforcement have "probable
cause" for a search and obtain a "warrant" to search for
specific items in specific places.
The concept of the "right to privacy" comes in large
part from the Fourth Amendment, though the word, "privacy,"
is not used
Note the
interrelationship between what is "reasonable," what constitutes
"probable cause," and which discoveries require "warrants." The
concepts are difficult ones with few absolute answers or bright line
demarcations.
Consider, for
example, the difference between a search for a particular object or
person, which generally requires probable cause and a warrant, vs.
the discovery of an unlawful act or item in the usual performance of
duty, which does not require a warrant. Commonly, for example, law
enforcement officers do routine stops to help prevent drunk driving
or to ensure that people wear their seat belts. Generally, the
officer does not have the right to search the car or the passengers
just out of idle curiosity. The officer is required, as part
of his/her duty, to be alert for violations of the law. If the
officer sees an open bottle of alcohol in the car or smells smoke
from illegal drugs, or if someone in the car shouts, "Help, I’m
being kidnapped!" then the officer has reason to believe that a
crime may have been or is being committed. The need for a warrant
may not apply in that situation.
Courts have
spent countless hours in thousands of cases trying to protect the
individual’s rights against unlawful search and seizure while also
trying to allow law enforcement to do its job and protect the
population. Consider how many hit TV series use Fourth Amendment
issues as plot elements.
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Fifth Amendment |
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"No person shall
be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for
public use, without just compensation."
Note the
familiar phrases and concepts:
Protection against being "twice put in jeopardy," or
"double jeopardy."
Protection against self-incrimination, or in common
parlance, "I take the Fifth." The protection of attorney/client
privilege is part of the protection against self-incrimination.
Attorney/client privilege allows you to have full disclosure of your
case with your attorney so that he/she can do the best job of
representing you, but prevents your attorney from reporting that
information to law enforcement. It also protects your attorney so
that law enforcement cannot compel him/her to reveal information.
Protection against government seizure of property
without just compensation.
Note that since
September 11, 2001, the Attorney General (AG) has claimed the right
to engage in eaves dropping on discussions between attorneys and
their alien clients if the AG believes they may be discussing,
planning or facilitating terrorist acts. Many immigration and civil
liberties attorneys are deeply concerned about this action of the
AG.
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Sixth Amendment |
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"In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein
the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense."
Note the
familiar concepts and the guarantee of a right to:
trial by jury in a criminal proceeding.
a speedy trial.
a public trial and therefore prohibition against
"secret" trials.
know exactly what the charges are.
know the witnesses against you – to "face your
accusers."
subpoena witnesses to compel them to appear.
have an attorney.
have the trial held in the jurisdiction in which the
crime was committed.
Notice how so
many of the elements we commonly think of as part of a trial appear
in the Sixth Amendment, and how much they are a part of an open,
public trial system.
The accused may
choose to have a jury hear the case, not just a judge, thus moving
the process from a judicial decision to a kind of public forum. But
note that the jury trial is a choice, and the accused also has the
right to elect a trial by a judge with no jury present.
The accused has
the right to be tried in the area where the crime was committed,
where witnesses are likely to be, and where the jury is, in theory,
composed of his peers, those who understand the environment.
Attorneys for either side may request a "change of venue" or change
of location of the trial if they believe that the publicity of a
particular case or similar factors makes it unlikely or impossible
to conduct a fair trial in the current venue. A judge may legally
grant a change of venue depending on circumstances and the facts of
the case.
The accused has
the right of subpoena – he/she, through the court, can force people
to testify about their knowledge of the case.
The accused has
the right to have an attorney, someone who understands the judicial
system and can help him/her prepare a defense. Note that the right
to an attorney includes the concept of providing an attorney at the
expense of the state for citizens. Aliens have the right to an
attorney, but not at government expense.
The accused has
the right to a speedy trial to prevent unfair imprisonment while
awaiting trial. Because of long delays in the court system some
attorneys have argued that long waits for court dates amount to a
violation of the right to a speedy trial and unconstitutionally
imprison people who have not been convicted of any crime. See how
this relates to the Eighth Amendment.
Since the events
of September 11, 2001, the enactment of the USA PATRIOT ACT, along
with other actions by the President and the Attorney General, appear
to have eroded some of these rights. For example, there have been
discussions of secret or military trials that may not be
Constitutional. Many immigration and civil liberties attorneys are
deeply concerned about these actions by the President and the AG.
Note the
difference between the Sixth Amendment and Seventh Amendment. The
Sixth refers to criminal proceedings like murder, theft, arson,
assault, and so on where the state (the government) generally
prosecutes the accused. The Seventh refers to civil or common law
where one person (or company or other entity) is suing another for
money, damages, to enforce the terms of a contract, and so on.
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Seventh Amendment |
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"In Suits at
common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law."
This amendment
gives each person his or her "day in court" and the right to have a
jury settle a civil dispute. But note that the jury trial is a
choice, and the accused also has the right to elect a trial by a
judge with no jury present, or to settle the dispute out of court if
both parties agree.
When the
Constitution was written, twenty dollars was a lot more money than
it is now, but the right exists, nonetheless. In practice, many
disputes about small amounts are handled in small claims court, or
by arbitration, or by out of court settlements. Neither side wants
to risk spending thousands of dollars in legal fees and court costs
just to win a few dollars. But sometimes a person feels very
strongly about a perceived injustice, or a company believes that its
reputation is in jeopardy or that loss of one case will result in
many others being brought. In such cases the individual or the
company may insist on the jury trial as a matter of principle and a
right under the Constitution.
Note the
difference between the Sixth Amendment and Seventh Amendment. The
Sixth refers to criminal proceedings like murder, theft, arson,
assault, and so on where the state (the government) prosecutes the
accused. The Seventh refers to civil or common law where one person
(or company) is suing another for money, damages, to enforce the
terms of a contract, and so on. |
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Eight Amendment |
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"Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted."
Note the two
important elements:
The purpose of bail is not punishment, but to ensure
that the person shows up for the trial. The excessive bail rule can
be relative. For example, to a poor person $500 may be an excessive
bail, while to a very rich person, $1,000,000 might not be. Judges
must consider these relative factors, the seriousness of the crime,
and the likelihood that the accused will appear for trial in
determining bail.
The judgment of what is cruel and unusual punishment
changes as the morals and sentiments of the nation change. The
prisons of 100 years ago might be considered cruel by today’s
standards. There are many sides to this argument. Is capital
punishment, the death penalty, cruel and unusual punishment? Is life
imprisonment with no hope of release crueler than execution? Is
execution a fair punishment for premeditated murder? Should the
convicted person be allowed to choose either life in prison or
execution? Is it cruel and unusual punishment to put those convicted
of writing a bad check, committing computer crimes, or engaging in
telephone fraud in a prison environment where they might be
assaulted or killed by other inmates who have been convicted of
violent crimes? How old should a "child" be to warrant imprisonment
with adults? Is it cruel to put an adult person in an adult prison
or execute him/her if he/she has the mental capacity of a
five-year-old? |
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Ninth Amendment |
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"The enumeration
in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
The point of
this amendment is to say that even though lots of rights are listed
specifically in the Bill of Rights, the people have lots of others
that may not be listed. Rights belong to the people to exercise, not
to the government to be parceled out. The people do not have to wait
for the government to give them rights, and the government cannot
take away a right just because it is not specifically listed in the
Bill of Rights.
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Tenth Amendment |
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"The powers not
delegated to the
United States
by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people."
Frequently
referred to as "states’ rights" or "reserved powers," this amendment
means that each state can pass its own laws and conduct its business
according to the will of the people of that state as expressed in
their election of public officials, their decisions on referenda,
and their enactment and implementation of laws.
This amendment
has generated heated discussion and multiple Supreme Court decisions
over the years in questions of who has jurisdiction over a
particular matter, the state or the federal government. For example
before the Civil War different states had different laws on slavery.
Slavery was legal in some states, but not in others. It was the
right of each state to make laws concerning slavery. The Thirteenth
Amendment to the Constitution abolished slavery, making it illegal
in every state. Each state no longer had the right to make laws
concerning slavery because the Constitution had been changed.
Modern states’
rights issues include environmental laws, state rules on the
distribution of public funds such as Welfare, the legal age for
drinking alcohol, state income taxes, commercial enterprises, and so
on. Let us say, for example, that a state passes a law making 18 the
legal age for drinking alcohol. The federal government passes a law
saying that federal money to build highways and improve
transportation services will only go to states that have a legal
drinking age of 21 or higher. The state is heavily dependent on
federal funds for its transportation services. Has the federal
government violated the Constitutional rights of the state by making
this law? Is the state forced to change its law? Would it be in the
financial interest of the state to change its law? Consider a
similar situation of federal vs. state law regarding the
distribution of public funds and services to aliens. Should someone
unlawfully present in the U.S. receive federal funds (taxpayer
money) and services (paid for with taxpayer money)? Should an alien
in temporary status such as F, J, H, or O receive food stamps or
free medical care? If Congress passes a law denying or limiting
federal funds and services to aliens, could a state give them
services and funds anyway paid for from state resources? What if the
positions were reversed and the federal government authorized
funding and services that the state refused to give? Can the federal
government make states comply with federal clean air and clean water
laws? Can the states have environmental laws that are stricter than
those set at the federal level? Do businesses and people in that
state have to obey the stricter state laws or just the more lenient
federal ones?
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|
Q8. |
What
about my right not to be discriminated against? You didn’t
mention that one. |
| A8. |
In
general the protection against discrimination operates as a
combination of the Fourteenth Amendment and the Civil Rights
Act of 1964 (Public Law 88-352). A great deal of that
judicial and legislative language speaks to protection from
discrimination in areas of employment, housing, public
transportation, education, eligibility for public benefits,
and similar ordinary components of making a life. |
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The
Fourteenth Amendment, Section 1 reads |
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"Section. 1. 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."
Note the
familiar concepts.
Definition of who is a citizen of the
U.S.
"Equal protection" so that all citizens of a state and
of the U.S.
must be treated equally under the law.
The guarantee of "due process" or a systematic and equal
application of the law before any punishment is or penalty can be
imposed.
Note, though,
that in the second sentence the first clause talks about "citizens"
and the second and third clauses talk about a "person." Experts on
constitutional law debate whether the whole section applies only to
citizens or whether the distinction between citizens and other
persons is intentional. The debate can extend to a discussion of the
entire Constitution and Bill of Rights. Did the authors use the
terms "citizen," "person," and "the people" interchangeably such
that the Constitution and Bill of Rights really only applies to
citizens, and was never meant to apply to noncitizens? Did the
authors really intend to give some rights to all persons or all
people and reserve others just for citizens? Must the Constitution
and each of the amendments be read as a separate item, judging from
its context the meaning of "citizen," "person," or "the people" in
that context only?
In general,
under the Fourteenth Amendment and the Civil Rights Act, as a
person, you have protections afforded to all "persons." As an alien,
not a citizen, you do not have all of the rights or
protections that a citizen has.
Examples.
Citizens have the right to work at will. Lawful
permanent residents, and certain other persons with asylee, refugee,
and similar status may have the general privilege under specific
laws to work at will. As an F-1 or J-1 student or scholar or family
of an F-1 or J-1, you do not have the right or general privilege to
work. You only have the opportunity to apply for work permission and
to be granted that permission within specified rules and parameters.
Citizens, lawful permanent residents, and certain
refugees, asylees, and those in similar status may be protected from
discrimination in employment. Those holding temporary status such as
F or J, may not have the same protections against discrimination. In
short, an employer may choose not to hire someone simply because he
or she is an alien in temporary status. An employer has no
obligation to hire a temporary alien or to file a visa petition for
status such as an H-1B or "green card."
Also, as a
result of the events of September 11, Congress passed the USA
PATRIOT ACT that gave law enforcement some broader powers. That law
is too new to know all the ways it may affect the rights of aliens.
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Q9. |
Whew! That is a lot of stuff out of ten or eleven little
amendments. How many more amendments are there and do they
really affect me? |
| A9. |
At last count, there were a total of twenty-seven amendments.
A review of these is a short trip through some of the most important
times and events of
U.S. history.
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Interestingly, the
most recent amendment, the twenty-seventh,
regarding pay
limitations for Congress, was first proposed in 1789 (yes 1789), but
initially failed to get support from a sufficient number of states.
Proposals for amendments these days generally carry cut-off dates by
which they must be ratified or they die. The very early proposals,
like this one, carried no such date. It lay dormant, but legally
alive, until the 1980s when some people concerned about
Congressional pay revived it. It was finally ratified in 1992.
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Some amendments
repeal earlier amendments. For example the Eighteenth Amendment,
Prohibition of Intoxicating Liquors, (ratified 1919) made it illegal
to make or transport alcohol anywhere in the U.S. This time in U.S
history is referred to as "prohibition." The Twenty-first Amendment
(ratified 1933) repealed the Eighteenth, making it legal again to
make, transport, and consume alcohol in the U.S. Many early
"gangster" films about the "roaring twenties" used the illegal
trafficking in alcohol as a central plot element. Modern films use
drug trafficking in the same way. |
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A number of
different websites provide the text of the Declaration of
Independence, the Constitution, the Bill of Rights, and the
Constitutional Amendments. We recommend these two to start.
THOMAS, the
Congressional information web site named after Thomas Jefferson, at
http://thomas.loc.gov/home/histdoxmainpg.html
gives you access to the historical collection at the National
Archives and Records Administration (NARA) website.
FINDLAW at
http://www.findlaw.com/casecode/constitution/
contains both the text of the documents and extensive
comment, explanation, and related Supreme Court cases with hundreds
of cross links to source texts and legal notes.
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Q10. |
If I
believe my rights have been violated, what should I do? |
| A10. |
Any person, including an alien person, who believes he/she is
negatively affected by the law and believes that the law violates
the Constitution may pursue a case through the court system to the
Supreme Court. If the Court finds that the law stands in opposition
to the Constitution, the law can be "struck down," or declared
unconstitutional and therefore invalid. |
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The Supreme Court
has heard several famous cases dealing with the rights of aliens -
some decided against the aliens’ arguments, and some decided in
favor. Considering the current legal climate and the serious
Constitutional issues arising from the USA PATRIOT Act and actions
of the Attorney General, we can expect to see more cases brought by
immigration attorneys advocating for the rights of alien clients. |
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