Allison Brownell Tirres, DePaul University College of Law, has posted The Unfinished Revolution for Immigrant Civil Rights, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:
The Supreme Court’s landmark 1971 decision in Graham v. Richardson, which declared noncitizens to be a “discrete and insular minority” under the Equal Protection Clause, catalyzed an extraordinary era of litigation in support of the civil rights of noncitizens. Noncitizens and their attorneys succeeded in overturning hundreds of discriminatory laws through court challenge or legislative lobbying, drawing directly on a tradition of Black civil rights advocacy. They transformed the doctrine of equal protection, convincing courts that aliens should be protected from invidious state discrimination. Yet after just a few years, the inclusion of noncitizens in equal protection doctrine took a surprising turn, as the Court backtracked from expansive protections and created an exceptional “dual standard” for alienage discrimination. As a result, noncitizens were pushed outside the fold of robust Fourteenth Amendment protection. Today, states continue to bar immigrants – both documented and undocumented – from a wide range of professions, economic activities, and forms of political engagement, based on their lack of citizenship. This article is the first legal history to examine equal protection doctrine as it relates to noncitizens during this pivotal era. Drawing on extensive primary source material from the archives of advocacy organizations, the papers of Supreme Court Justices, and more, the article looks at the development of doctrine from the standpoint of the litigants and lawyers who made the movement. In so doing, it provides crucial context for understanding the history of the Equal Protection Clause and the continued struggles for immigrant rights today.--Dan Ernst
