Does the U.S. Bill of Rights apply to everyone within our borders, or just citizens? I’ve seen it applied to non-citizens, but is that actually codified somewhere, or is it just based on precedent?
For example, do foreigners have the same rights of free speech and freedom of religion that citizens have?
And more specifically: Many people support the building of the Islamic community center near Ground Zero, based on the owners’ First Amendment rights. Would that argument still be valid if the owners were (legal) aliens from, say, Iran?
Yes, the BoR applies to non-citizens within the US borders.
I’m not sure that the proposed MCC is entirely a 1st amendment issue, but rather a zoning issue, too. NYC could not, for instance, ban mosques from that area but not churches or synagogues. It can, however, regulate where religious buildings in general can be built.
But yes, they have a right build a mosque even the owners are not citizens and the government can’t stop them because of their religion, although there may be other reasons to stop them.
Note that the First Amendment’s guarantee of religious liberty does not say either “citizens have the right of free exercise of religion” or “all people have the right of free exercise of religion”; rather, it says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”–the form of the amendment is of a limitation on government power (Congress can’t make any law prohibiting the free exercise of religion, not just laws prohibiting the free exercise of religion by citizens). Most of the Bill of Rights has been applied to the states (and hence to local governments as well) through the process of “incorporation”, which relies on the Fourteenth Amendment’s Due Process Clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law”. The wording here speaks of “any person”, not “any citizen”. (Whereas the “Privileges and Immunities Clause” of the Foureenth Amendment says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”; but in practice the courts have ruled that the rights guaranteed here are pretty limited, relying instead on the Due Process Clause for incorporation of most of the Bill of Rights with respect to state and local governments.)
The Fourteenth Amendment’s “equal protection” clause also uses “person”, not “citizen”: “nor deny to any person within its jurisdiction the equal protection of the laws.” (By contrast, the various suffrage amendments speak of “citizens”, not “persons”–you can’t keep blacks or women from voting, but of course you can keep foreign tourists from coming over here and voting.)
Back to the original Bill of Rights, the Fifth Amendment says:
And again this is reinforced by the language of the Fourteenth Amendment, which on questions of state deprivation of life, liberty, or property talks of “persons”. So we can’t just seize foreigners in this country, beat a confession out of them, and then lock them up or shoot them without a trial.