Why the Constitution Cannot Protect Illegal Aliens

Over the last decade the U.S. has been embroiled in controversy over the application of Constitutional protections to illegal aliens.  You might notice I've used the term "illegal aliens" rather than the more common politically correct term "illegal immigrant".  I've done this out of honestly and integrity.  The term "immigrant" means a long term resident and carries the implication that the person is legally permitted to be there.  The term "illegal immigrant" was coined and made popular to make the practice of illegal border crossing sound more benign and harmless than it actually us.  In the 1990s, when I was in my teens, "illegal alien" was the common term, and it is the more honest and accurate term, and thus it is the term I will use here.  Anyhow, in this article I will explain exactly why the idea of extending Constitutional protections to illegal aliens is impossible and why even trying to do it is potentially catastrophic.

The central question here is not whether or not the Founders intended for the Constitution to protect illegal aliens.  If it was, the question would be trivially solved: To the best of its ability, the early U.S. did not tolerate unauthorized entry into the country, and those who did enter without authorization were almost always treated as foreign invaders.  Proponents of open borders like to claim that the early U.S. was very amenable to large scale immigration and imply that this is the same as open borders, but this is completely false.  The early U.S. did encourage immigration.  At this time, the U.S. needed an enormous amount of labor, far beyond the capacity of its current population, to develop the nation, build infrastructure, and advance technology.  The country went through periods of mass immigration, facilitated and regulated by the Federal government.  Immigrants were required to pledge allegiance to the United States, and they were expected to integrate and adopt the same level of civil responsibility as native born Americans.  They were also required to give up their foreign citizenship.  During times of need the U.S. has, pursuant to the will of the people, opened up its borders to legal immigration, wisely regulated by the Federal government, temporarily until the will of the people dictated that the need had been met and the tide of immigration should be stemmed.  This is how immigration has been handled by nations for millennia, and for good reason, as we've seen with Biden's open borders experiment.  Regardless of all other factors, an excessively high rate of immigration will exceed the capacity of existing infrastructure and continue to exceed it even as the government attempts to catch up, resulting in the many disasters which were observed in border towns and in places immigrants were transported to during the ill fated experiment.

The central question in terms of Constitutional protections for illegal aliens is entirely one of jurisdiction.  Most Americans understand regional jurisdiction.  This is the idea that the place you are in has jurisdiction over you.  There are two other kinds of jurisdiction though, that most Americans do not understand, and the evidence strongly suggests that "most Americans" in this context includes many judges and lawyers, who supposedly have a far better education in legal matters than people like me.  The second most well understood kind of jurisdiction is one of levels, and this level should be understood by Americans better than those in most or maybe all other countries, due to our Federal system of government.  The U.S. Constitution dictates a separation of powers between the Federal level of government and the state level, only granting the Federal government power within a small number of very narrow domains.  If many Americans don't understand this, it is perhaps understandable, as our Federal government has overreached its bounds to an incredible degree, usurping an enormous amount of power that is Constitutionally granted exclusively to the states.  That is not important here though, as the critical type of jurisdiction here is that of citizenship.

Citizenship is the critical type of jurisdiction in the question of Constitutional rights for illegal aliens.  No matter where in the world I go, I am a U.S. citizen, and the U.S. government retains sovereignty over me.  This doesn't mean that I'm governed by U.S. laws and not the domestic laws of the region I'm currently in, but it does severely limit what that regional jurisdiction can do to me and how the laws of that jurisdiction apply to me.  For example, if I commit murder and the punishment for murder is death, they can't just kill me.  They would need to get permission from the U.S. government to enact that punishment.  In fact, they can't technically even keep me in prison for any extended period of time without negotiating permission from the U.S. government.  Now, generally speaking, the U.S. government is amenable to such requests, if the crime would earn a similar or more severe punishment in the U.S., and if the evidence is sufficiently strong for the conviction to be believable.  In addition, we also have standing agreements with some of our allies automatically granting them this permission.  But, the U.S. government does not have to grant this permission and can demand the return of their citizen.  And this is true of all governments.

Now, you've probably heard of governments that have imprisoned or executed U.S. citizens without permission from the U.S. government, and maybe because this gets in the news while punishments with permission don't, you think this is the way things normally work.  The truth though is that it isn't.  When foreign countries imprison or otherwise punish U.S. citizens without permission from the U.S. government, they almost always face serious repercussions.  A common response is trade embargoes, and where we can convince our allies to back us, other international sanctions.  We've threatened war over this, and we've sent in military strike teams to recover U.S. citizens imprisoned without our permission.  It is not normal for a nation to punish a foreign citizen without permission from the country that person is a citizen of.

What all of this comes down to is national sovereignty.  The United States does not have sovereignty over citizens of other countries.  No country has sovereignty over anyone who is not a citizen of that country.  Regional jurisdiction does give the country the right to police and govern its own region, but it does not give a country the right to hold or harm those who are not its citizens.  Those people fall under the sovereignty of the nations they are citizens of, and if a foreign country did hold or harm them, that would be a massive violation of the sovereignty of the countries they are citizens of.  If you are in a foreign country, and you commit some act that is a crime within that country, that country's government does not have unilateral rights to punish you for your crimes, because they don't have sovereignty over you.  What do they have the right to do?  They can hold you temporarily.  They can try you for your crimes (unless your own nation demands your immediate return, leaving no time for a trial).  They can deport you.  They can deny you future entry (banishment).  What they can't do is punish you, beyond banishment.  And this is something we've seen play out in the U.S., with illegal aliens being held to be tried for serious crimes and their nations of citizenship demanding their return.  When this happens our only viable options are to return the citizen as demanded, keep them and risk fully justified military or economic actions against us, or attempt to negotiate the situation to allow us to keep the criminal until we've tried and punished them.  This often ends with us returning the person with the agreement that they will be returned to our custody for trial later.  We've done this with Mexico on multiple occasions, and while we have a pretty good relationship allowing us to do what we want with illegal Mexican aliens who have committed crimes in the U.S., we've run into issues where the person was also wanted for crimes committed in Mexico, which they illegally entered to escape accountability for.  In these cases, we will normally return them to Mexico for trial and prosecution there, and then when their punishment is over, the Mexican authorities will return them to the U.S. for trial and punishment here.  This is not, to my knowledge, codified in any sort of national law.  Instead it is just how sovereignty and citizenship work and always have worked.

So, how does this apply to Constitutional protections?

1. We don't have sovereignty over any illegal alien in the U.S., whether they have committed any crimes or not.
2. We don't have the right to punish them without consent from their countries of citizenship.
3. We do have the right to banish them from the U.S..
4. We don't have the right to give them a trial, but as long as their countries of citizenship don't object we can get away with it.
5. We cannot legally keep them, if their countries of origin demand their return.

These are the most important factors.  The fourth and fifth ones are especially important, because they mean that we cannot possibly guarantee their Constitutional rights.  If their country of citizenship demands their return without a trial, we can't provide due process.  The Constitution only has jurisdiction within the context of U.S. sovereignty.  That doesn't just mean it only has jurisdiction within U.S. territory, it also means it only has jurisdiction in terms of U.S. citizens.  If lack of sovereignty means even one right can't be applied a person, it means that Constitutional rights cannot be applied to that person in general.  This isn't about what the Founders intended either.  The Founders could have explicitly written that all of these rights do apply to illegal aliens, and it wouldn't matter, because the Constitution can hold no sovereignty over illegal aliens.  U.S. law cannot require other countries outside of our jurisdiction to behave in certain ways, and one of those ways it cannot force them to comply is the application of our Constitutional rights to their citizens.  None of this is about what U.S. law requires, it's about the limitations of jurisdiction of sovereign states.

None of this means we can't give illegal aliens the same benefits our Constitution guarantees as rights for us, but it cannot guarantee them those rights, because it does not have sufficient jurisdiction over them.  We could pass Federal laws (but not state or city laws, because the Federal government has exclusive power concerning immigration) giving them those rights so far as their countries of citizenship permit.  This is ultimately up to the voters and the people they choose to represent them.  In the end though, no foreign national on U.S. soil can be guaranteed any Constitutional rights, except as explicitly legislated by the Federal government and permitted by their specific countries of citizens, and that means that illegal aliens definitely don't have religious freedom, freedom of conscience, freedom of the press, the right to peaceful assembly, the right to bear arms, or any of the other freedoms and rights protected by the Constitution including the right to a trial and the right to due process!  They definitely don't have any Constitutional right to vote in the U.S..  Even the rights to life  and liberty cannot be guaranteed by the Constitution or any U.S. law for illegal aliens, whether the document says it explicitly or is merely interpreted by judges to mean it.  Neither the Constitution, nor Congress, nor U.S. judges even have that power!  It is completely and entirely outside of the jurisdiction of any government to guarantee rights to foreign nationals.  The closest any government could get is a code of treatment of foreigners that apply only to the extent that they do not infringe on the sovereignty of another country.

There's one more right the Constitution cannot guarantee illegal aliens, and that is citizenship for children born to them in the U.S..  This does and has created serious sovereignty issues, because by default the child of a citizen of some country is automatically claimed as a citizen of that country.  For another country to claim a child as a citizen merely because that child was born there is a huge violation of national sovereignty.  There are some countries that, for the purpose of keeping us appeased, allow dual citizenship in these cases, but the truth is that this is just a workaround of those far weaker than us, to avoid a fight over citizenship.  It's their way of keeping some of their own sovereignty without starting a fight, and it is evidence that applying birthright citizenship to children of foreign nationals is completely out of line.  The U.S. is not the king of the world and does not have the power or right to unilaterally claim the legal citizens of other countries as its own without due diplomatic process!

Unfortunately, most U.S. politicians, lawyers, and even judges, don't seem to understand the concept of national sovereignty.  This is likely because the U.S. has been a dominant superpower in the world for so long that we've forgotten that we aren't the unilateral rulers of the entire world.  We've gotten away with violating and abusing the rest of the world for so long that we've come to believe that this is our right.  This puts us in a very precarious position though, because the truth is, while we are stronger than any other individual country, if a significant portion of the world turned on us, we would lose that fight.  It's even worse when we do it very close to home, because there's less time for warning, and it's less expected.  If Mexico and a bunch of Middle and South American nations ganged up on us, they could easily kill a significant portion of our border populations and probably as far as LA, Phoenix, Austin, and Houston before we could do much about it.  If Canada joined that alliance, our northern states could easily see very high casualties as well, before we had much chance to respond.  We might win such a war and manage to recover and hold all of our territory, but in lives lost, we would be a huge loser.  And we have violated the sovereignty of Canada, Mexico, and a handful of South American nations already.  We are still on friendly terms with Canada and Mexico, but setting a precedent of violating the sovereignty of other nations on a massive scale, by holding their citizens for "due process" could easily send a message that we are everyone's enemy, and that could end very badly for everyone.

Thankfully, our current President, Donald Trump, seems to understand the place of the U.S..  He doesn't take our dominance for granted.  Instead of insulting the leaders of nations who posed us the greatest danger, he was polite and friendly, as standard protocols of international diplomacy dictate.  He acknowledged their national sovereignty even when he disagreed with their modes of governance.  Instead of working through threats of national sovereignty, like most of our previous Presidents in the last few decades, he works through things like tariffs that the U.S. government does have jurisdiction over.  Most Americans don't seem to recognize it, but as much as our trade partners don't like the tariffs, they appreciate that their sovereignty is not being challenged, threatened, or violated.  Again, most Americans can't see it, but Donald Trump is actually repairing our reputation, by respecting the sovereignty of other nations.  But, when Democrats step in and challenge things like deportations, that undermines those efforts.  And when they force Trump to keep illegal aliens on U.S. soil at the demand of their countries of citizenship, that undermines U.S. sovereignty over its own territory, sending a message to our enemies that we are weak.  When our government is not allowed to deport illegal aliens in a timely manner, that sends the message that we don't care about anyone's sovereignty.  It strengthens the view of the U.S. as a country that believes it already controls and rules the entire world, and that's a recipe for disaster.  The last time a country decided that it should own and control the world, most of the rest of the world banded against it and put it back in its place.  If we continue down this path, we won't have time to be torn apart by civil war, because the world will fear us more than China or Russia, and they will align against us, conqueror us, cut us into pieces, and distribute the U.S. among the nations of the world, to use as slaves and colonies in hopes of wresting from us some portion of the wealth our ancestors and us worked hard to generate and fought hard to protect.

Anyhow, the takeaway here is that regardless of all other factors, the idea that we can guarantee illegal aliens any rights at all is absurd.  The Constitution does not govern the world, nor does it govern the citizens of other countries.  It can't, especially if they are here illegally.  (Legal immigrants have formally agreed to be governed by U.S. law, and the U.S. has formally agreed to govern them under U.S. law.  Illegal aliens have not agreed to be subject to U.S. sovereignty, so there's no justification for us to violate the sovereignty of their countries of citizenship.)  The best thing we can do with illegal aliens is get them out of the U.S. as soon as possible, to minimize any chance of an international diplomatic incident caused by their unauthorized presence in our country.  The only due process they should receive is making absolutely sure they are not a U.S. citizen before deporting them, and that should not require any sort of trial or other "due process".  Legal due process for illegal aliens is deportation, because we don't have the jurisdiction over foreign nationals to do anything more.