Immigrants and the Right to Petition - NYU Law Review

Imaged with the Permission of N.Y.U. School of Law
NEW YORK UNIVERSITY LAW REVIEW
[Vol. 78:667
II
IMMIGRANTS AND THE RIGHT TO PETITION
The threshold question in examining immigrant rights under the
Petition Clause is whether the Clause applies to noncitizens at all. In
1990, the Supreme Court suggested that noncitizens, particularly undocumented
persons, are excluded from the protections enshrined in
the First and Fourth Amendments. The statements arose in United
States v. Verdugo-Urquidez, 62 a case in which the Court concluded that
the Fourth Amendment did not compel suppression of evidence obtained
by U.S. law enforcement officials who conducted a warrantless
search of a Mexican citizen's private home in Mexico. 63 Relying on a
"textual exegesis" that he conceded was "by no means conclusive," 64
Chief Justice Rehnquist concluded for the Court that "'the people'
protected by the Fourth Amendment, and by the First and Second
Amendments... refers to a class of persons who are part of a national
community or who have otherwise developed sufficient connection
with this country to be considered part of that community. ' "65
The rationale for the Court's decision was largely originalist,
driven by its examination of the text of the Constitution, 66 the drafting
history of the Fourth Amendment, 67 and its determination that "'the
people' seems to have been a term of art." '68 Most importantly for the
purposes of this Article, the Court declared that the applicability of
the Fourth Amendment to "illegal aliens in the United States" was an
62 494 U.S. 259 (1990).
63 Id. at 261-62.
64 Id. at 265. Justice Brennan's dissent, in contrast, included a detailed review of the
history of the Fourth Amendment. Id. at 286-89 (Brennan, J., dissenting).
65 Id. at 265.
66 Id. at 265-66.
67 Id. at 266.
68 Id. at 265-66 (contrasting term "the people" in Fourth Amendment to terms "person"
and "accused" in Fifth and Sixth Amendments). The Court's textual analysis was
limited to listing provisions of the Constitution, pointing out that the term "the people" is
employed in the Preamble, the First, Second, Fourth, Ninth, and Tenth Amendments, and
Article I, Section 2, Clause 1, whereas "person" is used in the Fifth and Sixth Amendments.
Id. As for the history of the Fourth Amendment in particular, Chief Justice
Rehnquist offered a brief overview of colonial opposition to British writs of assistance,
noted opposition to the Federalist claim that a Bill of Rights was unnecessary because the
new federal government possessed limited powers, and cited no evidence distinguishing
searches or seizures of citizens and noncitizens. Nevertheless, the Court then asserted:
The available historical data show, therefore, that the purpose of the Fourth
Amendment was to protect the people of the United States against arbitrary
action by their own Government; it was never suggested that the provision was
intended to restrain the actions of the Federal Government against aliens
outside of the United States territory.
Id. at 266.