A federal judge in Kentucky proposed in a judicial opinion this week that the Bill of Rights does not protect more than 50 million immigrants in the United States. Judge Amul Thapar, who serves on the Sixth Circuit Court of Appeals, argued that originalism required him to exclude all noncitizens from the Constitution’s protections.
“Originally understood, neither the First nor Fourth Amendment clearly extends to noncitizens,” he wrote in a concurring and dissenting opinion on Monday. “And, properly read, the Supreme Court’s guidance on these amendments is far from consistent, in part due to the drift of First and Fourth Amendment caselaw from the original public meaning of the text.”
Thapar’s opinion is a trainwreck, to put it mildly. Though the case only concerned the scope of the Second Amendment as it applies to undocumented immigrants, the Trump appointee goes far beyond the facts and briefs to forcefully argue that millions of people living lawfully in the United States can be silenced and seized at the government’s whims. To build his case, Thapar commits a series of profound moral and legal errors that disprove his argument altogether.
The case at hand, United States v. Escobar-Temal, involves a Guatemalan man who illegally crossed the U.S. border some time before 2012. According to court documents, he has lived in the Nashville area for the past thirteen years, where he married a woman and had two children with her. Police searched his home in 2022 after his wife alleged that he had abused their daughter and found three guns that Escobar-Temal owned.
Federal law makes it a felony offense for people unlawfully present inside the United States to possess a firearm, and federal prosecutors charged him accordingly. Escobar-Temal then challenged the constitutionality of his indictment, claiming that provision in question violates the Second Amendment. This is unsurprising: Escobar-Temal’s challenge is one of dozens, if not hundreds, of legal challenges to existing gun regulations that have arisen since the Supreme Court rewrote its test for Second Amendment cases in 2022.
At issue in this particular case is who counts as “the people” for Second Amendment purposes. Escobar-Temal argued that he fell within that category and pointed to two grounds to justify this interpretation. First, he argued, the Constitution’s Framers saw no distinction between the Bill of Rights’s protections for citizens and for “aliens” present inside the United States. Escobar-Temal pointed to language from the Framers to support that view, but we’ll come back to that later.
Additionally, Escobar-Temal argued that Supreme Court precedent supports his interpretation as well. He pointed to a 1990 case, United States v. Verdugo-Urquidez, where the justices concluded that foreign nationals could invoke the Fourth Amendment’s protections against unreasonable searches and seizures. “The people,” the court reasoned, includes both those who are U.S. citizens as well as those who have “developed sufficient connection with this country to be considered part of [the national] community.” The Justice Department and the federal district court disagreed.
The Sixth Circuit took a more nuancd view than Escobar-Temal. Judge Stranch, writing for the panel, concluded that the government’s “ample historical evidence” did not conclusively show that “unlawfully present individuals are excluded from ‘the people.’” She pointed to some of the precedents invoked by Escobar-Temal, as well as related rulings that suggested unlawfully present immigrants might enjoy some measure of the Bill of Rights’s protection.
Ultimately, however, Stranch rejected the defendant’s challenge on Second Amendment grounds. The Supreme Court’s history-and-tradition test for gun restrictions, she noted, allows them to survive if they are part of a longstanding historical tradition. Stranch cited numerous examples where colonial and post-independence legislatures disarmed entire groups of people presumed to be dangerous and outside the normal “political community,” such as Catholics or Native Americans. “While many individual liberties were preserved for resident aliens, the right to bear arms was restricted to those who had a special relationship with the United States government,” she concluded.
I doubt any side in the gun-control debate would disagree with the outcome of this case. Even those who favor a broad reading of the Second Amendment appear to have their limits: No gun-rights groups filed friend-of-the-court briefs to side with Escobar-Temal, unlike in similar cases. Gun-control advocates would also likely find this debate to be pointless since they generally don’t believe the Second Amendment protects an individual right to bear arms at all, contra the Supreme Court’s 2008 ruling in District of Columbia v. Heller.
While Thapar joined the other two judges in their ultimate conclusion—that Escobar-Temal’s challenge had failed—he categorically rejected the notion that an “illegal alien” might be entitled to Second Amendment rights. “Plain and simple, ‘the people’ refers to the American citizens who consented to the government of the United States,” he wrote in a separate opinion. “Since illegal aliens aren’t citizens, they can’t assert ‘the right of the people to keep and bear arms.’”
From there, Thapar argued that his narrow reading of “the people” to only mean citizens extended to the entire Bill of Rights. This would be a seismic shift in the American constitutional landscape. If Thapar’s opinion became the law of the land, it would instantly strip the rights from roughly 52 million people currently living in the United States, most of whom are lawfully present in the country. Roughly one out of every seven people in the country would lose their rights to free speech, to not face unreasonable searches and seizures, and more. It would immediately create an underclass of millions of people who could be lawfully subjected to official abuses without any opportunity for relief or recourse.
To justify that reprehensible outcome, Thapar engages in some interpretive bait-and-switch. He leans heavily on precedents that suggest that not every constitutional right applies with equal force to non-citizens. Most notably, he pointed to rulings that upheld campaign-finance restrictions against non-citizens. As then-Judge Brett Kavanaugh noted in a 2011 opinion while serving on the D.C. Circuit Court of Appeals, for example, Congress “may exclude foreign citizens from activities that are part of the democratic self-government of the United States.”
“The majority errs in assuming that modern caselaw guarantees First Amendment rights to noncitizens, let alone illegal aliens,” Thapar claimed. “The Supreme Court has consistently found that noncitizens may assert speech protections in more limited circumstances than American citizens.” But there is a vast gulf between arguing that someone possesses a slightly narrower set of First Amendment rights than a U.S. citizen does, and arguing that they possess no First Amendment rights at all.
Thapar also rejected the courts’ clear presumption that constitutional rights apply to noncitizens unless convincingly argued otherwise. Those cases are amply and favorably cited to chastise the majority for assuming that the Bill of Rights applies to noncitizens with equal force. When other Supreme Court precedents clash with Thapar’s understanding, however, it is brushed aside in favor of the “original understanding” from the Founding era that he has supposedly unearthed.
Thapar’s historical excavation is not remotely persuasive. Most disturbing of all are his citations of the Alien and Sedition Acts as evidence of the original public understanding of the Bill of Rights. Those laws, which were enacted by the John Adams administration, were vehemently criticized at the time and arguably led to his defeat in the 1800 election. The Thomas Jefferson administration either allowed them to expire or repealed them outright, with the exception of the Alien Enemies Act.
Since then, the rest of the Alien and Sedition Acts have taken on a sort of anticanonical status in constitutional law. While judges often look to founding-era practices to understand how early Americans thought the government should operate, the Acts are typically seen as an exception to that principle—and a warning for future generations. In 2018, for example, fellow originalist Justice Clarence Thomas argued in a dissenting opinion in Sessions v. Dimaya that noncitizens might not be entitled to the Due Process Clause’s protections.
Thomas favorably cited the Federalists’ arguments in favor of the Alien Friends Act, which gave the president broad deportation powers to target anyone that he deemed “dangerous.” Thomas noted that the Federalists believed that the “rights of aliens were governed by the law of nations, not the Constitution.” He also argued that deportations did not fall under the banner of “life, liberty, or property,” which he described as a “relatively narrow set of core private rights.”
None of the other justices endorsed Thomas’s heterodox view. Two colleagues who otherwise concurred with his dissenting opinion, Justices Anthony Kennedy and Samuel Alito, specifically declined to join that portion of it. So too was he criticized by the justices in the majority. Justice Neil Gorsuch, who wrote the leading opinion, argued firmly against treating the Alien and Sedition Acts as instructive on the Constitution’s meaning.
“[The Alien Friends Act] was understood as a temporary war measure, not one that the legislature would endorse in a time of tranquility,” Gorsuch wrote. “Yet even then it was widely condemned as unconstitutional by Madison and many others. It also went unenforced, may have cost the Federalist Party its existence, and lapsed a mere two years after its enactment. With this fuller view, it seems doubtful the Act tells us a great deal about aliens’ due process rights at the founding.”
Thapar’s historical analysis is even more profoundly flawed. Here is how he describes the relevant events on the acts’ invocation, with internal citations removed for readability:
Aside from the right to assemble and petition, the First Amendment’s application to noncitizens was far from settled at the time of the founding. One episode is particularly instructive: President John Adams contemplated applying the Alien and Sedition Acts to imprison William Duane, the editor-in-chief of a newspaper issuing an “uninterrupted stream of slander” about the Adams Administration. Instead of asserting the First Amendment directly, Duane claimed—perhaps falsely— to be an American citizen. Of course, that would be no defense if the First Amendment protected citizens and aliens alike.
From this singular historical example, Thapar concluded that “the application of the Alien and Sedition Acts to resident foreigners suggests that the founders did not understand the First Amendment to extend to aliens, much less illegally present ones.” (Note how he goes from saying it was “far from settled at the time of the founding” at the start of the paragraph to magically finding a clear consensus by the end of it.)
Thapar leaves out a wealth of context, which I will try to supply in his stead.
Adams’s presidency was dominated by the French Revolution and its cascading effects throughout Europe. Early American political divides had begun to crystallize into the nation’s first two political parties. The Democratic-Republicans, led by Jefferson and James Madison, sympathized with French revolutionaries from the outset. That affinity only grew stronger as Britain, whose monarchy and aristocracy they despised, went to war with the new French republic.
Adams and the Federalists, meanwhile, had watched events unfold in France with growing horror. “[The Federalists] saw in that revolution a chilling forecast of what the United States could expect from its own population without strong, principled leadership from the elite,” Charles Slack wrote in Liberty’s First Crisis, a 2015 book on the Sedition Act of 1798. “Indeed, they saw themselves as the last barrier against Republican-driven chaos. Radicals, revolutionaries, and malcontents from around Europe were streaming onto American soil and stirring things up.”
That anti-immigrant sentiment manifested itself in familiar ways. Slack described a 1797 speech by Harrison Gray Otis, a Federalist congressman from Massachusetts, in which Otis said he welcomed “honest and industrious” immigrants but urged the country not to “invite hordes of wild Irishmen” into its borders. Fears only grew in 1798 after the Society of United Irishmen launched a major rebellion against British rule in Ireland with the support of French soldiers. Passage of the Alien and Sedition Acts soon followed.
The extent to which Thapar is familiar with this history is unclear since he does not describe it. His research into William Duane’s case does not appear to have extended beyond the letter that he cited. If it had gone any further, Thapar would not have described Duane as “perhaps falsely” claiming to be an American citizen. Stack and other historians have identified his birthplace as Newfoundland and his parents as Irish immigrants. Duane later claimed to be a natural-born American from New York, where his family had moved when he was five years old, but he eventually bowed to reality and became naturalized in 1802.
Who was William Duane? For brevity’s sake, I will condense his otherwise fascinating life into the relevant details for Thapar’s narrative. After a thrilling career in journalism and activism that took him from London to Calcutta, Duane resettled in Pennsylvania in 1796. There he found work as a printer for The Philadelphia Aurora, a pro-Republican paper that had received support from Jefferson and his allies, and became a community leader among the Irish immigrants in the city with whom he identified.
The Aurora’s founder, publisher, and editor was Benjamin Franklin Bache, who had been named after his illustrious grandfather. Bache died of yellow fever in September 1798 in one of the many plagues that struck the nation’s provisional capital in that era. His widow Margaret became the Aurora’s publisher and Duane became its editor; the two eventually married. Under Bache and Duane, the Aurora became one of the principal newspapers to criticize the Washington and Adams administrations. The historian John Morton Smith, whose book Freedom’s Fetters covered the Alien and Sedition Acts cases in great detail, characterized Duane in this period as “the nation’s most influential Republican editor.”
Thapar claimed a sequence of events took place that, as far as I can tell, never actually occurred. First, Adams “contemplated applying the Alien and Sedition Acts” to Duane for what he had written. Second, Duane “claimed […] to be an American citizen” instead of “asserting the First Amendment directly” as a defense. Duane’s purported defense strategy, Thapar then asserted, logically suggested that the First Amendment would not be a defense for Duane if he were a noncitizen. Ergo, the judge concluded, noncitizens aren’t protected by the First Amendment.
The judge’s sole citation for this narrative that Adams “contemplated applying the Alien and Sedition Acts” to Duane is a letter written on July 24, 1799 by Secretary of State Thomas Pickering to Adams. A true pedant could observe that this letter is not really proof of Adams contemplating anything, but rather of Pickering informing Adams of Duane’s publications and suggesting that he would refer the matter to William Rawle, the U.S. attorney for Pennsylvania, but that is beside the point.
Pickering also told Adams what he knew about Duane’s background, which I will quote here in full:
The editor of the Aurora, Wm. Duane, pretends that he is an American Citizen, saying that he was born in Vermont, but was when a child, taken back with them to Ireland, where he was educated. But I understand the facts to be, That he went from American prior to our revolution, remained in the British dominions till after the peace—went to the British East Indies, where he committed or was charged with some crime—and returned to Great Britain, from whence within three or four years past he came to this Country to stir up sedition & work other mischief. I presume therefore that he is really a British subject, and as an alien liable to be banished from the U. States.—He has lately set himself up to be the captain of a company of volunteers, whose distinguishing badges are, a plume of cock-neck feathers & a small black cockade with a large eagle. He is doubtless a United Irishman, and the company is probably formed, to oppose the authority of the Government; and in case of war and invasion by the French, to join them.
This snapshot biography comes at the end of the letter, detached from the introductory portion where Pickering proposed a Sedition Act libel prosecution. One reasonable inference is that Pickering’s description of Duane’s life story is meant to show that the editor is dangerous, a finding required prior to deportation under the Alien Friends Act, the “Alien” part of the Alien and Sedition Acts. This discussion runs parallel to the libel prosecution but does not intersect with it. Pickering does not describe it as a precursor to Sedition Act charges and did not act like it was, as we’ll discuss later.
Thapar also presents this information as if it was occurring to the Adams administration for the first time. In fact, by the time Pickering had written that letter, Duane had already been targeted and prosecuted by Federalists for his political efforts. In February 1799, he and three associates posted signs at a Catholic church in Philadelphia urging “natives of Ireland” to stay after services and sign petitions urging the repeal of the Alien Friends Act of 1798. That law—the “Alien” portion of the “Alien and Sedition Acts”—allowed the president to effectively deport any foreign national that he thought “dangerous.”
A scuffle broke out between some churchgoers and one of Duane’s associates; all four were then arrested and charged with seditious riot by state officials for circulating the petition and trying to get the law repealed. At trial, the constitutional stakes were obvious to all involved, according to Smith’s account of the trial. Joseph Hopkinson, the appointed prosecutor and an Adams ally, appealed to plainly nativist sentiments. He argued before the jury that “aliens have no right whatever to petition, or to interfere in any respect with the government of this country” and claimed that “if aliens do not like the laws of this country, God knows there are ways and wishes enough for them to go back again.”
Representing Duane and the other defendants was Alexander Dallas, the secretary of the commonwealth of Pennsylvania at the time and a future Treasury secretary under Madison. (Hopkinson, for his part, later became a federal judge.) Dallas branded the prosecution a “party case” because it was brought, in his view, for partisan reasons. He argued that the defendants’ acts could not be characterized as sedition because they opposed the law “in the mode provided by the Constitution.” The jury acquitted the four men of all charges after only thirty minutes of deliberations, according to Smith.
That would appear to be strong evidence that early Americans rejected the notion that noncitizens lived outside the Constitution’s protections. One might even think it could factor into the “original public meaning” of the Bill of Rights. Thapar makes no mention of it, if he is even aware of it. Instead he focused on the events described in Pickering’s letter to Adams, which was sent later that summer.
In July 1799, Duane published an article that denounced the British government for allegedly meddling in American politics and “tarnish[ing]” the country’s “high character for private and public virtue.” He even wrote that President John Adams himself had claimed in a letter that British corruption had influenced official appointments during the Washington years, including “an officer of the most confidential and important trust under the government.”
In the letter cited by Thapar, Pickering was outraged by the claims that Adams “had asserted the influence of the British government in the affairs of our own—and insinuated, that it was obtained by bribery.” He sent a letter to William Rawle, the U.S. attorney for the district of Pennsylvania, and urged him to bring Sedition Act charges against Duane. “If the slander on the American government will justify a prosecution against the Editor or Author, be pleased to have it commenced,” Pickering told Rawle in a letter sent simultaneously to the one he sent Adams.
In this allegation, however, Duane had his ducks in a row. “In 1792 Adams wrote his friend Tench Coxe that he suspected ‘much British influence in the appointment’ of Thomas Pinckney as ambassador to England,” Smith recounted in his history of the era. Five years later, then-President Adams fired Coxe from his position in the Treasury Department, prompting Coxe to join the Democratic-Republicans. Having switched sides in the great partisan divide, Coxe then gave the incriminating Adams letter to Duane.
Contrary to Thapar’s narrative, Rawle had Duane arrested on charges of seditious libel on July 30 before Adams could approve the prosecution. When Duane appeared before a federal circuit court to stand trial, according to Smith, one of the presiding judges “expressed some doubt that the President had written such a letter, and the editor offered to stand trial instantly on that particular issue.” Truth was an absolute defense under the Sedition Act. “The Court and the District Attorney were, for a moment, struck with astonishment,” Duane later recalled in the Aurora, and the spectators “expressed their feelings by a sudden but impressive emotion of surprise and conviction.”
Sensing the advantage, Dallas—who was once again called in to defend the editor in court—suggested that the judges should postpone the trial until Duane could summon other prominent witnesses to prove his article’s veracity until June 1800. The court agreed to the face-saving measure. That delayed trial never took place. The Adams administration later informed Duane in 1800 that it would drop the charges against him and abandon the prosecution. (Whether they would have renewed their campaign against him if Adams had prevailed in that year’s election, as some historians speculated, is impossible to know.)
Thapar’s butchery of this saga is a layered one. Adams did not merely “contemplate” Duane’s prosecution; he supported and encouraged it after the fact. Duane never needed to invoke the First Amendment to defend himself from Adams. Since he could prove the allegations he made as true because he possessed Adams’s letter, the First Amendment issues were not even relevant for the case. At no point do Adams or Pickering formally challenge Duane’s citizenship. Nor did they try to deport any other foreign nationals prosecuted under the Sedition Act; the Alien Friends Act was never actually invoked before it expired in 1801. In every significant way, Thapar’s presentation of this historical event is wrong.
To make matters even worse, the Duane case wasn’t even the first time that the Adams administration had tried to destroy the Aurora and its editors with sedition charges. Bache, Duane’s predecessor, had also been targeted by the Federalists for his strenuous criticism of the Adams administration. While Congress was still putting the finishing touches on the Sedition Act, federal prosecutors brought common-law libel charges against Bache for publishing a French diplomat’s account of the XYZ Affair. Scheduled to face trial in October 1798, he died of yellow fever before he could defend himself in court.
Indeed, the Sedition Act is famous precisely because it was the only part of the Alien and Sedition Acts that targeted American citizens and noncitizens alike. Federalists used the law to target newspaper editors, pamphleteers, and even a Democratic-Republican member of Congress for criticizing the Adams administration. The law infamously exempted the vice president, allowing Federalist newspapers to criticize Jefferson freely. (At the time, the vice presidency went to the runner-up in the presidential election, a misjudgment that Congress and the states soon corrected.)
To exalt Duane’s singular case as proof that noncitizens do not have constitutional rights, even though it was withdrawn and even though citizens were targeted as well for the same conduct, borders on judicial malfeasance. For one thing, it elevates a single failed prosecution in 1799 over an abundance of contrary evidence from far better sources. In his writings denouncing the Alien and Sedition Acts, no less than James Madison himself, the author of the Bill of Rights, argued that noncitizens were protected by the Constitution.
“[I]t does not follow [that] because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection,” Madison explained in his report for the Virginia legislature. “Aliens are not more parties to the laws, than they are parties to the Constitution; yet it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in return, to their protection and advantage.”
Originalists like Thapar purport to interpret the Constitution according to its original public meaning. On the rights of noncitizens, Madison suggested that a consensus already existed in the founding era. “If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial,” he continued. “But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one half may be also aliens.”
The most cynical explanation for why Thapar went out of his way to write this is that he is auditioning, so to speak, for a future seat on the Supreme Court. The 56-year-old judge’s broad declaration that noncitizens do not have constitutional rights will be met with horror by most Americans. But I would imagine that members of the Trump administration would read it with unrestrained glee. Thapar himself was Trump’s first nominee and appointment to the lower federal courts at the start of his first term, which automatically flagged him as a prospect for higher judicial service.
I do not personally know if that is why Thapar wrote this opinion. Perhaps he just sincerely and enthusiastically believes all of this nonsense. In either event, if he becomes shortlisted for the Supreme Court someday, the Senate need only look at this opinion to disqualify him from the job. To recklessly misread the law and American history like this, all in service of a grave constitutional and moral wrong, is incompatible with serving in high judicial office. Every senator who voted against his confirmation would be honoring themselves and the Constitution.
