“The first thing to understand is that the Constitution doesn’t apply to people who have not yet come to our country,” Senator Rand Paul said recently. “Let’s start with the law,” adds David Frum in The Atlantic. “It’s firmly established U.S. law that the rights of the Constitution belong only to Americans.”
The funny thing about this firmly established truism, however, is that it’s neither firmly established nor true. The First Amendment applies to noncitizens, it applies abroad, and it applies to noncitizens abroad.
Let’s start with the law, as the contrarians say. The first thing to understand is that the Constitution establishes a federal government with limited powers. Congress has the power to “lay and collect Taxes.” It can “regulate Commerce with foreign Nations.” It can “establish a uniform Rule of Naturalization.” And it can “make all Laws which shall be necessary and proper” to exercise these powers.
But the same Constitution contains prohibitions, first among them being “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”
This language from the First Amendment is not just a right that belongs to Americans. It’s also a limit on what Congress can do. Congress can “regulate Commerce with foreign Nations,” but it can’t do so while “abridging the freedom of speech.” Congress can “establish a uniform Rule of Naturalization,” but not one that “respect[s] an establishment of religion.” Nothing about this language permits an abridgment or an establishment that only affects noncitizens or that only takes place abroad. Congress just lacks the power to do it. Period.
Other limits in the Constitution are similar. “No person,” for example, can “be deprived of life, liberty, or property, without due process of law.” Not “no citizen.” Not “no American.” “No person.” And as the Supreme Court has observed, “an alien is surely a ‘person’ in any ordinary sense of that term.”
To be sure, there are parts of the Constitution that make distinctions based on citizenship. Only “citizens” can serve in Congress or the Oval Office. Only “citizens” have the right to vote free from race- or sex-based discrimination.
But these citizen-specific rights are rarer than you might think. Most of the Constitution protects the rights we all value by imposing structural limits on what the government has the power to do. Paul Ryan, for instance, can’t take away your healthcare by writing on a napkin, “the Affordable Care Act is repealed.” The Constitution’s limits require both houses of Congress to first pass a bill and present it to the president (assuming, of course, that it can). This kind of structural limit “protects the liberty of all persons,” citizens and noncitizens alike. And it applies regardless of whether the right to healthcare is a constitutional one.
Just last year, the Supreme Court reaffirmed that the First Amendment is one of these limits—in other words, that the First Amendment is a limit on what the government has the power to do, rather than merely a set of rights that supposedly “belong only to Americans.” The case involved a police officer named Heffernan who carried some political signs on behalf of his mother. The city punished Heffernan because it mistakenly believed he was supporting a rival candidate for mayor. When Heffernan sued, the city argued that Heffernan’s rights weren’t violated because the First Amendment doesn’t protect mere filial chores. But the Court disagreed based on the limits the First Amendment imposes on the government.
“The First Amendment begins by focusing upon the activity of the Government,” the Court explained. “The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity.” The city passed a “law” with the purpose of “abridging the freedom of speech.” And that’s something the Constitution doesn’t allow.
The Court has made clear that the First Amendment prohibits this sort of discriminatory purpose no matter the context—no matter what a law looks like on its face, no matter who the law affects, and no matter whether the people most harmed by the law have rights that are enforceable in court. The federal and state governments simply lack the power to pass any law whose purpose is “aimed at the suppression of ideas,” that has the “purpose to favor one faith over another,” or that has the “purpose to disapprove of a particular religion.”
So how does this play out in the context of the travel ban? It means that the order’s “purpose” is what matters. And the administration has made that purpose clear (andmore) to anyone with eyes or ears. It’s plainly irrelevant that “Muslim Ban 2.0” harms noncitizens more than citizens. It doesn’t matter that, unlike the 1.0 beta version, it doesn’t apply to people who are currently in the United States or who had travel documents in January. What the order looks like on its face or who it applies to isn’t dispositive. What matters is that its purpose is to disapprove of a particular religion.
The proper understanding of the First Amendment’s reach also has implications for the Trump administration’s thus far unchallenged “global gag rule.” This rule, which adopted President Reagan’s “Mexico City Policy” of 1984, prohibits federal funds from going to “nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations.” Applied to domestic NGOs who receive family-planning grants for programs abroad, the policy requires them to hold federal funds separate from their own funds, which may be used for abortion-related services. Applied to foreign NGOs, by contrast, the policy prohibits any NGO that receives any federal money from performing or discussing abortions abroad, even on their own dime. The policy also forbids domestic NGOs from subcontracting with foreign NGOs that perform or discuss abortions abroad.
If the global gag rule withheld all federal funds from domestic NGOs who used only their own money to perform or discuss abortions abroad, there’s no question that the rule would be an unconstitutional abridgement of the freedom of speech. In 2013, the Supreme Court struck down an identical law that withheld federal funds from organizations that didn’t declare their opposition to prostitution. The law complemented an existing one that already prohibited organizations from using federal funds for prostitution. The new law was therefore unconstitutional, the Court explained, because its only purpose was to “deman[d] that funding recipients adopt—as their own—the Government’s view on an issue of public concern.” And Congress lacked the power to do that—even abroad.
That’s precisely what the global gag rule does to foreign NGOs. The United States already doesn’t permit federal funds to be used for abortions, which is why domestic NGOs must hold separate federal funds from funds used for abortion. By also forbidding foreign NGOs receiving federal funds from using their own money to discuss or provide abortion, the only purpose of the global gag rule is just that: to gag globally. Indeed, that was how the original Mexico City policy was formulated—it reflects that “the United States does not consider abortion an acceptable element of family planning programs.” The purpose of the policy is to restrict speech that expresses a contrary viewpoint.
The only argument for why the rule might be constitutional has been that foreign NGOs, unlike domestic NGOs, lack First Amendment rights. But it’s beside the point that the foreign NGOs are noncitizens abroad. The First Amendment prohibits Congress and the rest of the federal government from passing any policy whose sole aim is the suppression of ideas. And no one doubts that the only purpose of the global gag rule is to suppress family planning messaging related to abortion.
It was this kind of analysis that led then-Judge-now-Justice Ginsburg to conclude in 1989 that the initial global gag rule was unconstitutional. She questioned the idea that “the Constitution—or, at least, the first amendment in significant measure—does not follow the flag when U.S. officials deal with foreign persons.”
The Constitution establishes a government of limited powers. Those powers do not morph into “anything goes” when Congress (or Congress and the president) deal with noncitizens; people who are abroad; or noncitizens who are abroad. Courts may be willing to give the political branches more latitude for actions abroad then they would at home—deferring to their expertise in crafting foreign policy. But when the First Amendment says Congress “shall make no law,” it means it.