This is patently false in the judicial, legislative, and the civic sense. Rhetoric aside (because there are tangible effects with mass migration that must be addressed in the realm of legislative and administrative policy), civilians who illegally enter our country are nonetheless categorically different from soldiers enlisted and serving under the color of a foreign country. Per "Plyler v. Doe" from 1982:
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The Fourteenth Amendment provides that
"[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
(Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins,118 U. S. 356, 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67, 426 U. S. 77 (1976). [Footnote 9] Page 457 U. S. 211
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [Footnote 10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized
Page 457 U. S. 212
that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:"
"Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws."
Yick Wo, supra, at 118 U. S. 369 (emphasis added).
In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at 163 U. S. 238. [Footnote 11] Our cases applying the Equal Protection Clause reflect the same territorial theme: [Footnote 12]
Page 457 U. S. 213
"Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, each responsible for its own laws establishing the rights and duties of persons within its borders."
Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 305 U. S. 350 (1938).
There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.
Page 457 U. S. 214
Although the congressional debate concerning ยง 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H.R. 63) that was to become the Fourteenth Amendment. [Footnote 13] Cong.Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later, Bingham posed the following question in support of the resolution:
"Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?"
Id. at 1090.
Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State:
Page 457 U. S. 215
"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction."
Id. at 2766 (emphasis added).
Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.
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Take note: even though the dissenting Justices (which included William Rehnquist) disagreed with the majority on the matter of how the Equal Protection Clause was applied regarding state education of children of illegal aliens, they did not dispute whatsoever that they were subject to the state's jurisdiction.
Quote (bold is emphasis mine): "CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting...I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state."
This isn’t 1982 and I think most people accept now that the ILLEGALS flooding America are not here under the authority of government! They are entitled to due process just as any foreign criminal who ends up here is, but they are not “within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign”!