Persons Who Are Not the People: The changing rights of immigrants in the United States
Persons Who Are Not the People: The changing rights of immigrants in the United States examines the legal history of "immigrant rights" in the United States, with special attention to the distinction between rights of membership, which are restricted for those who lack legal status or citizenship in the country, and rights of personhood, which are guaranteed by the Equal Protection Clause of the 14th Amendment. While rights of membership, including the right to vote, were easy to acquire in the 19thcentury, often only requiring the filing of "first papers" indicating the intention to become a citizen, they have become increasingly restrictive in recent times. At the same time, the courts in the United States have grown reluctant to afford rights of personhood to immigrants, especially those who lack legal status. Instead, when federal courts have ruled in favor of immigrants, they have generally invoked a preemption argument. The author considers this a dangerous trend, as preemption doesn't work for immigrants when federal statutes are at issue, and preemption arguments can also be used to strike down pro-immigrant statutes. The "dissipating membership rights of immigrants," coupled with reluctance to use the equal protection clause as "a shield against majoritarian abuse," puts immigrants in a vulnerable position, inconsistent with the core values of the nation. Indeed, "a loss in immigrant rights might be a bellwether for a broader reduction of American rights."
Heeren, G. (2012). Persons Who Are Not the People: The Changing Rights of Immigrants in the United States (December 19, 2012). Columbia Human Rights Law Review, Vol. 44, No. 2, 2013; Valparaiso University Legal Studies Research Paper No. 12-16. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2191651