The fact that the phrase "illegal immigrants," a term not preferred by the community it denotes, does not appear in the U.S. Constitution does not mean that rights and freedoms do not apply to these individuals.

Often described as a living document, the Constitution is constantly being interpreted and reinterpreted by the U.S. Supreme Court, federal appeals courts, and Congress in order to address the ever-changing needs and demands of the people. While many argue that "We the People of the United States" refers only to legal citizens, the Supreme Court and lawmakers have consistently disagreed, and for longer than you may think.

Yick Wo v. Hopkins (1886)

In Yick Wo v. Hopkins, a case involving the rights of Chinese immigrants, the Court ruled that the 14th Amendment's statement, "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," applied to all persons "without regard to any differences of race, of color, or of nationality" and to "an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here," (Supreme Court of the US 1885).

Wong Wing v. United States (1896)

Citing Yick Wo v. Hopkins, the Court applied the citizenship-blind nature of the Constitution to the 5th and 6th amendments in the case of Wong Wing v. United States, stating " ... it must be concluded that all persons within the territory of the United States are entitled to the protections guaranteed by those amendments and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law," (Supreme Court of the US 1896).

Plyler v. Doe (1982)

In Plyler v. Doe, the Supreme Court struck down a Texas law prohibiting enrollment of illegal aliens—the term most commonly used for undocumented immigrants then—in public schools. In its decision, the Court concluded, "The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under the immigration laws, an alien is a 'person' in any ordinary sense of that term. ... The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents," (Supreme Court of the US 1981).

It's All About Equal Protection

When the Supreme Court decides cases pertaining to First Amendment rights, it typically draws guidance from the 14th Amendment's principle of "equal protection under the law." In essence, the equal protection clause extends First Amendment protection to anyone and everyone covered by the 5th and 14th Amendments. Through the court's consistent rulings that the 5th and 14th Amendments apply equally to illegal aliens, such people, therefore, also enjoy First Amendment rights.

In rejecting the argument that the equal protection of the 14th Amendment is limited to U.S. citizens, the Supreme Court has referred to the language used by the Congressional Committee that drafted the amendment:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another... . It [the 14th Amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction," ("A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875").

While undocumented workers do not enjoy all of the rights granted to citizens by the Constitution—in particular, the rights to vote or possess firearms—these rights can also be denied to U.S. citizens convicted of felonies. In final analyses of the ordinances of equal protection, the courts have ruled that, while they are within the borders of the United States, undocumented workers are granted the same fundamental, undeniable constitutional rights as all Americans.

Right to a Lawyer in Deportation Hearings

On June 25, 2018, President Donald Trump tweeted that undocumented immigrants should be immediately returned to “from where they came” with “no Judges or Court Cases.” This came weeks after the Trump administration issued a “zero-tolerance” immigration policy, which led to a spike in separations of undocumented immigrant families detained at the border, ("Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry"). Though President Trump had already ended the family separations through an executive order issued on June 1, this decision brought heightened attention to the question of whether undocumented immigrants have the right to a court hearing or legal representation, a lawyer, when faced with deportation.

In this case, the Sixth Amendment states, “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.” In addition, the U.S. Supreme Court ruled in the 1963 case of Gideon v. Wainwright that if a criminal defendant or suspect lacks enough money to hire an attorney, the government must appoint one to them, (Supreme Court of the US 1963).

The Trump administration’s zero-tolerance policy requires that most illegal border crossings, except those involving parents who cross the border illegally with children, be treated as criminal acts. And according to the Constitution and current law, anyone facing a criminal charge has the right to a lawyer. However, the government is only required to provide an attorney if the defendant is accused of a felony, and the act of crossing the border illegally is only considered a misdemeanor. Through this loophole, then, undocumented immigrants are not appointed lawyers.

The Shooting of Kate Steinle by Undocumented Immigrant Jose Ines Garcia Zarate

For a better idea of how undocumented immigrants in the U.S. are afforded constitutional rights, consider the tragic shooting of Kate Steinle.

On July 1, 2015, Steinle was killed while visiting a seaside pier in San Francisco by a single bullet fired from a pistol held by Jose Ines Garcia Zarate, an undocumented immigrant.

A citizen of Mexico, Garcia Zarate had been deported several times and had previous convictions for illegally re-entering the U.S. after being deported. Just before the shooting, he had been released from a San Francisco jail after a minor drug charge against him was dismissed. While U.S. Immigration and Customs Enforcement issued a detention order for Garcia Zarate, police released him under San Francisco’s controversial sanctuary city law.

Garcia Zarate was arrested and charged with first-degree murder, second-degree murder, manslaughter, and variety of firearm possession violations.

In his trial, Garcia Zarate claimed that he had found the gun used in the shooting wrapped in a T-shirt under a bench, that it went off accidentally as he unwrapped it, and that he had not intended to shoot anyone. Prosecutors, however, claimed Garcia Zarate had been seen carelessly pointing the gun at people before the shooting.

On December 1, 2017, after lengthy deliberation, the jury acquitted Garcia Zarate on all charges except that of being a felon in possession of a firearm.

Under the constitutional guarantee of due process of law, the jury found reasonable doubt in Garcia Zarate’s claim that the shooting had been an accident. In addition, Garcia Zarate’s criminal record, details of his prior convictions, or immigration status were not allowed to be presented as evidence against him.

In this case and in all similar cases regarding undocumented immigrants, Garcia Zarate, despite being a previously convicted undocumented alien, was afforded the same constitutional rights as those guaranteed to full citizens and lawful immigrant residents of the United States within the criminal justice system.​