Originalism is a legal philosophy that interprets the Constitution based on the original understanding of the document at the time it was enacted. This approach influences many debates about constitutional rights, including the rights of non-citizens in U.S. law. In recent decades, originalism has moved from the fringe to mainstream constitutional interpretation, shaping major Supreme Court decisions and legislative policies. Understanding how originalist principles apply to non-citizens requires a careful examination of historical context, textual language, and evolving judicial reasoning.

The Foundations of Originalism

Originalism holds that the Constitution’s meaning is fixed at the time of its ratification. There are several variants within originalism, but the most prominent today is original public meaning originalism, which asks what a reasonable person would have understood the text to mean when it was adopted. This contrasts with earlier versions that focused solely on the subjective intentions of the Framers. Justice Antonin Scalia was a leading advocate of this approach, arguing that it provides predictability, constrains judicial discretion, and respects democratic processes.

Originalists reject the idea of a “living Constitution” that evolves with societal values. Instead, they argue that constitutional amendments are the proper mechanism for change. This methodological commitment has direct consequences for how rights—especially those not explicitly listed—are interpreted. For non-citizens, whose status was less comprehensively addressed in the 18th century, originalist analysis often turns on the precise wording of constitutional provisions, such as “the people,” “persons,” or “citizens.”

External Resource: For a detailed overview of originalist theory, see the Constitution Annotated’s discussion of interpretive approaches.

Constitutional Rights and Non-Citizens

The rights of non-citizens under U.S. law present a complex tapestry of protections and limitations. Some constitutional guarantees explicitly refer to “citizens,” as in the Privileges or Immunities Clause of the Fourteenth Amendment. Others, such as the Due Process and Equal Protection Clauses, speak of “any person” or “any person within its jurisdiction.” This textual variation has led to a bifurcated framework: certain rights are considered fundamental and extend to all individuals regardless of immigration status, while other rights are reserved for citizens.

Fundamental Rights Extended to All Persons

The Supreme Court has long held that the Due Process Clause of the Fifth Amendment and the Equal Protection Clause of the Fourteenth Amendment protect “any person,” including non-citizens lawfully present or even undocumented. Landmark cases illustrate this principle. In Yick Wo v. Hopkins (1886), the Court struck down a San Francisco ordinance that was applied discriminatorily against Chinese immigrants, holding that the protections of the Fourteenth Amendment are not limited to citizens. Similarly, in Wong Wing v. United States (1896), the Court ruled that non-citizens facing criminal punishment are entitled to grand jury and trial by jury protections because the Fifth and Sixth Amendments apply to “persons.”

More recently, in Mathews v. Diaz (1976), the Court upheld a Medicare eligibility requirement of five years’ residency, but recognized that even non-citizens have due process rights in the administration of federal benefits. And in Zadvydas v. Davis (2001), the Court held that the government cannot indefinitely detain non-citizens after a final removal order, because the Fifth Amendment’s Due Process Clause applies to all persons present in the United States, regardless of their immigration status.

These decisions rest on a textual and historical understanding that the phrase “person” in the Constitution includes everyone within U.S. territory or jurisdiction. Originalists often examine the historical context: at the time of the Founding, “person” was understood in common law to encompass aliens and citizens alike, a view reinforced by the Ninth and Tenth Amendments’ references to “the people” in a broader sense.

Rights Reserved to Citizens

Conversely, certain constitutional provisions explicitly limit rights to “citizens.” The Privileges or Immunities Clause protects “privileges or immunities of citizens of the United States,” which the Supreme Court has narrowly interpreted, focusing primarily on rights such as voting in federal elections, interstate travel, and access to federal courts. The Fourteenth Amendment itself distinguishes between “citizens” (both of the United States and of the state) and “persons” for different clauses.

Voting is the most prominent right restricted to citizens. The Constitution, through the Fourteenth and Fifteenth Amendments, bars states from abridging the right of citizens to vote, implying that non-citizens have no constitutional right to vote in state or federal elections. This has been reinforced by cases such as Foley v. Connelie (1978), which upheld New York’s requirement that police officers be citizens, and Cabell v. Chavez-Salido (1982), which allowed California to exclude non-citizens from becoming peace officers. The Court held that states have a compelling interest in reserving certain government functions for members of the political community.

Welfare benefits have also been restricted. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) imposed strict eligibility rules on non-citizens, barring most lawful permanent residents from receiving federal means-tested benefits for their first five years. The Supreme Court in Mathews v. Diaz and later Department of Homeland Security v. Regents of the University of California (2020) acknowledged that Congress has broad discretion over immigration and that distinctions based on alienage in benefit programs do not always violate equal protection. Originalists argue that the original understanding of the federal government’s power over immigration and naturalization implicitly allows such distinctions, as the Constitution grants Congress authority over naturalization and the regulation of aliens.

Originalist Interpretations of Non-Citizen Rights

Originalists are not monolithic in their conclusions about non-citizen rights. The debate often hinges on whether a particular constitutional provision uses the term “person” or “citizen,” and what original public meaning justifies that distinction.

The Citizenship Requirement Argument

Many originalists contend that the Constitution was designed primarily to protect the rights of citizens. They point to the original Constitution, which references “citizens” in the eligibility requirements for President, Senators, and Representatives, and in the Diversity Clause of Article III. The Fourteenth Amendment’s Citizenship Clause was added to overturn Dred Scott v. Sandford (1857) and ensure that all persons born in the United States are citizens. From this perspective, the original understanding did not envision granting equal political rights to aliens. For example, voting was limited to citizens in most states at the Founding, and early naturalization laws required a long residency period before an alien could become eligible for citizenship and thus political participation.

Key case: In United States v. Verdugo-Urquidez (1990), a divided Court held that the Fourth Amendment’s protection against unreasonable searches and seizures does not apply to a non-resident alien’s home in Mexico. Chief Justice Rehnquist, writing for the majority, invoked originalist reasoning: “the people” protected by the Fourth Amendment refers to a class of persons who are part of the national community. This reasoning suggests that certain constitutional rights are geographically and citizenship‑dependent.

The “Person” versus “Citizen” Distinction

Other originalists challenge the narrow reading, noting that the Constitution repeatedly uses “person” in provisions concerning fundamental liberties. The Fifth and Fourteenth Amendments protect “any person,” as do the Fourth Amendment (unreasonable searches) and the Sixth Amendment (criminal trial rights). These originalists argue that the Framers intentionally chose “person” over “citizen” in contexts involving life, liberty, and property, demonstrating an intent to extend protections to all individuals present in the jurisdiction.

This view is supported by historical practice. At the time of the Founding, aliens were subject to much of the same criminal law and could sue in federal courts under diversity jurisdiction. The Alien Tort Statute of 1789 allowed aliens to bring suits for torts committed in violation of the law of nations. The First Congress, which included many Framers, enacted laws that provided due process protections to aliens pending deportation. These contemporaneous actions suggest that the original understanding recognized non-citizens as rights‑bearers in many contexts.

External Resource: The scholarly debate is well summarized in this Georgetown Immigration Law Journal article.

Originalism continues to shape modern disputes over immigration enforcement, public benefits, and voting. The tension between textual fidelity and evolving social norms is especially acute in these areas.

Immigration Enforcement and Due Process

The Trump administration’s immigration policies spurred several cases that tested originalist principles. The travel ban case, Trump v. Hawaii (2018), involved the President’s authority to restrict entry of aliens from certain countries. The Court, applying a rational basis standard, upheld the ban. Justice Kennedy’s concurrence, however, noted that the Constitution imposes a “fundamental principle of equal protection,” which applies to all persons. Originalists in the majority emphasized the broad executive power over immigration, rooted in the original understanding of foreign affairs and national sovereignty.

Another flashpoint is the detention of non-citizens. The Zadvydas decision mentioned earlier limited indefinite detention, but later cases like Jennings v. Rodriguez (2018) reversed course, holding that mandatory detention of certain aliens does not violate due process under a strict originalist reading of the Immigration and Nationality Act. Justice Alito’s opinion, for a plurality, relied on the statute’s text and historical practice, arguing that the original understanding of habeas corpus and due process did not require bond hearings for all detained non‑citizens.

Welfare and Public Benefits

The interplay of federalism, originalism, and non-citizen rights is evident in disputes over state‑level benefit restrictions. Several states have attempted to bar unauthorized immigrants from receiving in‑state tuition, driver’s licenses, or public housing. Courts often apply a rational basis test, but originalists argue that state police powers historically included the authority to classify based on alienage, unless the classification conflicts with federal law. The Supreme Court’s decision in Arizona v. United States (2012) struck down parts of Arizona’s S.B. 1070 on preemption grounds, but Justice Scalia’s dissent invoked originalist principles to assert that states have inherent sovereign authority to exclude or regulate aliens.

Recently, the Supreme Court in Department of Homeland Security v. Regents of the University of California (2020) held that the Trump administration’s rescission of DACA could be reviewed but did not reach the constitutional merits. The case highlighted the tension between executive discretion over immigration and the due process interests of DACA recipients. Originalists tend to side with broad executive discretion, but some acknowledge that once an alien is granted presence, the Constitution’s “person” language applies.

Voting Rights for Non-Citizens

Although non-citizens have no federal constitutional right to vote, some jurisdictions—such as San Francisco, Chicago, and several towns in Maryland—have extended voting rights in local elections to non-citizens, including lawful permanent residents. These laws are challenged on state constitutional grounds, but the federal question is whether the Constitution’s original meaning forbids such laws. Some originalists argue that the Citizenship Clause and the Fifteenth Amendment implicitly prohibit non‑citizen voting because the right to vote is a privilege of citizenship. Others contend that the Tenth Amendment leaves voting qualifications to the states, and states may define “elector” as they wish, provided they do not abridge the rights of citizens. The debate remains unresolved in many state courts.

Implications for Justice and Equality

The intersection of originalism and non-citizen rights raises profound questions about the nature of constitutional governance. If originalism requires that the Constitution’s meaning be fixed to the 18th century, then how can the document adequately address the complexities of modern global migration? Conversely, if the Constitution’s protections of “persons” are truly universal, why should citizenship matter at all?

Balancing Originalism with Modern Values

Originalists often acknowledge that the Constitution is not a perfect document, but they maintain that its text and original meaning provide a stable baseline. Changes to rights for non-citizens, they argue, should come through the democratic process of legislative amendment, not judicial interpretation. This view has led to a posture of restraint: courts should uphold most government classifications of non-citizens, as long as they do not violate the original meaning of specific provisions.

Critics of this approach, including some prominent originalists like Professor Randy Barnett, contend that the original public meaning of the Fourteenth Amendment’s “privileges or immunities” clause is broader than the Supreme Court has recognized, potentially protecting economic liberties and certain welfare rights for all persons. This internal originalist debate suggests that the philosophy does not dictate a single outcome in many cases; rather, it channels arguments into historical and textual evidence.

Ultimately, the question of whether the Constitution should be interpreted strictly according to its original meaning or adapted to contemporary standards remains a live one. For non-citizens, the stakes are especially high, as their access to fundamental rights—due process, equal protection, freedom from discrimination—depends on how the term “person” is understood. Originalism does not provide a simple answer; it demands that we carefully examine what the Framers and ratifiers intended, and how that intention translates to a world they could not have imagined.

The continuing dialogue between originalist scholars, judges, and advocates ensures that this area of law will remain dynamic. As immigration policy and the composition of the Supreme Court evolve, the originalist interpretation of non-citizen rights will likely continue to shape landmark decisions for decades to come. Understanding this framework is essential for anyone seeking to navigate the legal landscape of citizenship, belonging, and constitutional protection in the United States.

External Resource: For a comprehensive overview of Supreme Court decisions involving non-citizen rights, consult the Department of Justice’s resource on immigration and due process.