The U.S. Constitution and the American Citizen

Reclaiming Citizen Sovereignty

On June 4, 1788, a zealous but austere gentleman, famous for his rhetorical eloquence and public service, stood before his fellow Virginians at the Virginia State Ratifying Convention in Richmond. There he spoke out against the U.S. Constitution as proposed by the Philadelphia Convention and defended by John Jay, James Madison, and Alexander Hamilton in the Federalist Papers. The Constitution, Patrick Henry declared, was utter destruction of the state republics and the system of confederation all had agreed to under the Articles of Confederation. In particular, Henry was horrified that the Constitution granted national political power to the people instead of the states. In a well-known passage, Henry thundered:

Sir, give me leave to demand, what right had they to say, We, the People. My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask who authorized them to speak the language of, We, the People, instead of we, the States? States are the characteristics, and the soul of a confederation. If the State be not agents of this compact, it must be one great consolidated National Government of the people of all the States.

Little could Henry envision that “We the People” of the Constitution’s Preamble would become a cherished phrase of American national identity. Today, to be part of “We the People”—to be a citizen of the United States under the governance of the U.S. Constitution—is considered to be one of the greatest political privileges in the world. America is more free, more prosperous, and better governed than almost any country on earth, which is why millions of immigrants risk life and limb to enter this country—legally or illegally. This is because it is known and assumed that to be part of We the People is to be accorded certain rights, liberties, privileges, and immunities under the Constitution.

Despite Patrick Henry’s strong disagreements with the Federalists, they agreed upon one thing: the “People” who ratified the Constitution in the late 1780s, and for whom it was written, were citizens of the several states and of the United States. They were not Citizens of the World, illegal trespassers, or mere residents of the geographic territory of America. They were not descendants of the Indian tribes, nor were they foreign diplomats, visitors on temporary visas, or green card holders. They were citizens of America, for this was their home and their inheritance. The Constitution was written for American citizens alone, and only American citizens ratified the Constitution as their fundamental law.

The Case of Mahmoud Khalil 

On March 8, 2025, Mahmoud Khalil, a pro-Palestinian and pro-Hamas graduate student activist at Columbia University was apprehended by U.S. Immigration and Customs Enforcement (ICE) on orders by the State Department to revoke Khalil’s student visa. Khalil was a representative of the group Columbia University Apartheid Divest that presents itself as a continuation of the Vietnam anti-war movement seeking the liberation of Palestine from “Israeli apartheid,” and that demands the divestment of all U.S. business and other interests in Israel. Columbia was the nerve center of anti-Israeli protests in spring 2024, which saw Hamilton Hall broken into and barricaded by students. While Khalil was involved in one protest, he mainly served as a spokesperson because he feared that his student visa might be revoked.

After his arrest and detention at the LaSalle Detention Center in Jena, Louisiana, Khalil depicted himself as a political prisoner of the Trump regime and the target of Trump’s executive order against antisemitism being used to suppress free speech and dissent. On March 10, U.S. District Judge Jesse Furman granted Khalil a writ of habeas corpus and ruled that Khalil could not be deported until the court assessed and ruled on his case. The government, on its part, has judged Khalil to be a foreign threat and wants to deport him on the basis of the 1952 Immigration and Nationality Act, which allows the deportation of lawful residents.

The details of the case for or against Khalil do not concern us. The question before us is whether Khalil and those like him (non-citizen residents of various status) have a right to claim the rights and privileges of the Constitution? A cursory search online will reveal a common opinion: that non-residents have rights to speech, religion, press, protest, and self-defense under the First and Second Amendments, and due process rights under the Fifth and Sixth Amendments. The Supreme Court has ruled on these matters: from The Japanese Immigrant Case (1903), which established that the Fifth Amendment entitles aliens to due process rights, to Bridges v. Wixon (1945), which said lawful alien residents enjoyed constitutional protections like free speech, to Kwong Hai Chew v. Colding (1953) that said lawful aliens who reside in the country are “invested with the rights and guaranteed by the Constitution,” to Girouard v. United States (1946) and other cases that said non-citizens residents have the right to freely exercise their religion of choice.

The Constitution is Only for Citizens

The problem is that, on average, the Supreme Court’s twentieth-century rulings are incorrect. Much of the Court’s reasoning comes from the language of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof…nor shall any State deprive any person of life, liberty, or property…” (emphases added). The language of “all persons” and “any person,” when combined with the erroneous view that “subject to the jurisdiction thereof” refers merely to territorial jurisdiction (as opposed to political jurisdiction, or allegiance to the Constitution as a citizen), has led to the Court to conclude that the rights incorporated under the Fourteenth Amendment’s Due Process, Equal Protection, and Privilege and Immunities clauses must be applied to non-citizens as well as citizens.

There are many problems, however, with this interpretive framework. First, the founding generation would have been shocked at the idea that non-citizens would enjoy the rights and liberties of citizenship merely because they physically reside on American territory. According to their understanding of the origin and function of the body politic, only those who willingly ratified the Constitution as their fundamental law were entitled to its governance, protection, and privileges. The creation of fundamental, constitutional law as a social compact or political covenant was as much an act of exclusion as inclusion; it cut out those who refused to live under it or accept its strictures, with the result that thousands of American colonists who were loyal to Great Britain fled the colonies. The ratification of the Constitution formally declared that America was distinct as a people and nation from other peoples and nations around the world. Those who did not give their allegiance to the Constitution as citizens (either through birthright citizenship or naturalization law) were not entitled to the Constitution’s protections and privileges.

In addition, Article IV, Section 2 of the Constitution reads, “The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States.” While the meaning of this clause has been debated, one possible interpretation is an early version of incorporation: the “privileges and immunities of citizens in the several states” could refer to the rights and liberties of the Bill of Rights applied to the states and their citizens. This means there would be a strong link between the Bill of Rights and citizenship. Since the Fourteenth Amendment also speaks of the “privileges and immunities of citizens,” this would mean the Amendment perceived the Bill of Rights as being only for citizens. Since the rights of due process are explicitly stated in the Fifth and Sixth Amendments of the Bill of Rights, this would likewise mean that due process rights are reserved for citizens only.

Finally, the very language and construction of the Fourteenth Amendment imply that its provisions are intended for citizens alone. The Amendment opens by speaking explicitly of “citizens of the United States and of the State wherein they reside” as those who are “born or naturalized in the United States, and subject to the jurisdiction thereof.” All subsequent references to “any person” in the Due Process or Equal Protection Clauses are clearly a reference back to the “all persons” as “citizens” at the beginning of Section One.

Natural Rights and the Law of the Land

If twentieth-century Supreme Court interpretations of the Bill of Rights and the Fourteenth Amendment as applying to non-citizens as well as citizens is incorrect, this raises some questions. What is the relationship between the U.S. Government and the governments of the states to non-citizens of various kinds? Are these persons under U.S. law or not? Can they be held accountable to civil and criminal statutes? Is the U.S. Government allowed to treat them however it wishes?

There are three answers to this question. First, current U.S. immigration law has allowed for confusion and obscurity in the multiplication of non-citizen tiers: legal immigrants who are not yet naturalized but on their way toward citizenship, green card holders who can work (some of whom are temporary and some permanent), students on temporary visas, visitors on temporary visas, H-1B workers and other work programs, and of course, the millions of illegal aliens who are often given a myriad of social benefits. The founders would have been befuddled over the byzantine resident legal regime currently creating chaos in this country. They have had two major categories in mind: citizens, who enjoy the full rights and privileges of the U.S. Constitution; and non-citizen legal residents who are at some stage in the naturalization process. All other persons are temporary residents.

Second, all persons who reside in the U.S. retain a limited number of natural rights to be treated well. This means the U.S. Government is under both natural and divine duties not to murder or needlessly kill anyone, to severely mistreat, abuse, or torture them, and the like. This applies equally to citizens, non-citizen legal residents, and temporary residents. Third, however, all non-citizens are accountable to U.S. law. This means that temporary residents and non-citizen legal residents cannot break the law and not expect to avoid prosecution merely because they are not yet citizens. But this does not mean they are entitled to the full rights, liberties, privileges, and immunities of the Constitution, for these are civil and constitutional rights, not merely natural rights. This distinction is the source of confusion for liberal commentators who cannot grasp why foreigners don’t have the same rights as citizens. Non-citizen foreigners are under the goodwill and censure of U.S. law, but cannot claim the full range of its benefits until they become citizens.

For non-citizen legal residents (i.e., lawful immigrants) who are in the process of becoming naturalized citizens, there could be a limited application of the rights and liberties of the U.S. Constitution—a sort of good will down payment made by America on their behalf to encourage them to continue in the legal pathways to citizenship. Even still, citizenship ought to mean something for legal immigrants seeking naturalization, and this cannot be the case if they are immediately entitled to all the rights and privileges of the Constitution upon entry.

Conclusion

Current American immigration and residency law, as haphazardly developed by the sprawling D.C. bureaucracy and as bolstered by the Supreme Court over the last hundred years, has resulted in the devaluing of American citizenship. In many ways, the U.S. Government has rubber-stamped the magic dirt theory of American identity: that merely setting foot on American soil somehow magically transforms non-Americans into de facto citizens who can claim the rights of due process, freedom of association, speech, press, religion, political protest, and social benefits under U.S. law. Such misgovernment creates a tremendous magnet for immigrants (both legal and illegal) to desperately come to America by any means possible. The result is that once such persons are here, immigration and residency law make it very hard to remove such persons—like Mahmoud Khalil—because they can leverage legal firms, sympathetic judges, and the labyrinth of civil rights laws to their favor.

The consequence is that the distinctive and virtuous aspects of American citizenship and American identity have significantly deteriorated. The post-WWII twentieth century has been a century of globalism and openness that has weakened national bonds. American citizenship is a casualty of this phenomenon. We must recover a vision of exclusive citizenship and muster the political will to wrestle the treasure of our citizenship away from a bureaucratic and judicial regime that would sell our birthright for a measly bowl of stew or thirty pieces of silver.

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Image Credit: Unsplash

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