Much to the chagrin of those opposed to immigrants coming to the United States, there are Constitutional guarantees that apply to immigrants, including and especially the undocumented in the country. Even for individuals intending to immigrate to the country who have yet to set foot in America. In addition to the U.S. Constitution there is also the Universal Declaration of Human Rights that the United States is a signatory to.
The first thing that needs to be addressed, as surely it will be brought up by those opposed to immigration. American law does not directly guarantee the right for anyone to enter the country. However, there are fundamental rights that all humans have.
It is the right of people to freely congregate, express themselves, worship as they see fit and work freely.
The Universal Declaration of Human Rights
The rights to freely congregate, worship, free expression and work are enshrined in the Universal Declaration of Human Rights. The rights document recognizes that governments have the right to impose certain restrictions for the protection of people. For example, a government has the right to disperse protesters when it becomes too dangerous for the protesters and those around them. But under the UDHR, government restrictions on human rights cannot be “unjustly” applied for political purposes.
Most countries have adopted the UDHR as international law. The United States is a signatory to the UDHR. However, the United States like many other signatory countries has ruled that the UDHR “does not of its own impose obligations as a matter of international law.” [Sosa v. Alvarez-Machain, 2004] In other words, the UDHR is not part of domestic law.
However, that does not preclude the UDHR as establishing certain rights to all human beings regardless of their nationality. The UDHR provides rights above and beyond what is traditionally accepted. For example, the right to marry anyone. The right to visit family and friends wherever they may be. In other words, the right to be with loved ones regardless of borders. This, in addition to the rights to life, liberty and so on.
That does not mean that a country, like the United States must open its borders to everyone. It only means that countries cannot impose severe restrictions on violation of the basic human rights all enjoy. Countries can impose restrictions on immigration based on national security and to protect costs placed upon the national populations, such as welfare systems and health concerns.
But if the United States has stated that the UDHR does not impose limitations on domestic law then how does the UDHR apply to immigrants?
The UDHR provides for basic human rights to all individuals regardless of their national origin or citizenship. These are rights enshrined upon everyone.
Since the UDHR cannot impose law upon the United States then we must look at American domestic law to see what rights immigrants, including the undocumented ones have.
Anyone in America has the unalienable right to life, liberty and the pursuit of happiness. It is enshrined in the Declaration of Independence of the United States. An unalienable right is one that cannot be taken away. It is also important to note that the Declaration of Independence of the United States was adopted before there was a United States, and thus there were no U.S. citizens. Thus, the unalienable rights apply to everyone, regardless of U.S. citizenship.
The right to life, liberty and pursuit of happiness includes the right to visit with family, friends, to work and to marry whomever one wants to marry. A government cannot limit those rights by placing travel restrictions to certain individuals.
But, but we have laws that place limitations on people, especially crossing borders. The Constitution of the United States allows us to address that, specifically the ninth amendment to the Constitution.
The Ninth Amendment
The Ninth Amendment to the U.S. Constitution is seldom discussed, especially as applied to immigrants. It reads; “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” It simply means that rights not specifically listed in the Constitution are retained by the people although they are not part of the Constitution.
This Amendment was added to the Constitution because some argued that the absence of a Bill of Rights in the Constitution threatened some liberties reserved by the people because they were enumerated in the Constitution. James Wilson argued that adding a bill of rights “would be dangerous” because it “might imply that all those not listed were surrendered” by the people. But because of the opposition to the Constitution by the Anti-Federalists, who feared the erosion of rights, amendments were added to satisfy their fears.
The “natural rights” of people is guaranteed by the Declaration of Independence. The Universal Declaration of Human Rights, recognized by the United States also outlines the rights everyone enjoys, regardless of immigration status. And, the Ninth Amendment guarantees that the “rights retained by the people” cannot be taken away by law.
Immigration laws cannot be driven by those who fear cultural assimilation or threatened by people competing for jobs. Social and economic problems are not what laws are supposed to resolve. Laws used to exclude certain groups of people violates both the Constitutional guarantees of the United States and the Universal Declaration of Human Rights, not to mention the unalienable rights outlined in the Declaration of Independence.