ACLU History: Ensuring Fairness for All Within our Borders

Document Date: September 1, 2010

‘…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.’
— 14th Amendment to the Constitution

Denying the essential safeguards of due process is tempting for the government and may be superficially reassuring to the public; but the test of today’s policies is not the public sentiment of the moment, it is the judgment of history in years to come.

The United States is a nation of immigrants and, with the exception of Native Americans, all of us are in this country as voluntary or involuntary immigrants, or as the descendants of immigrants. Immigration has built the political, economic and cultural strength of this country from colonial days to the present. Yet virtually every group of newcomers has faced discrimination, hostility and stereotyping from those already here. Particularly in times of economic difficulty or fear about national security, immigrants are blamed for the problems of society and are viewed with anger, suspicion and fear. Racial, religious and cultural prejudices have fueled hostility toward each wave of new immigrants.

Protection of immigrants’ rights was one of the founding principles of the ACLU. Motivated by the notorious Palmer Raids that targeted immigrants for arrest, detention and deportation based on their political beliefs, the ACLU fought to make the First Amendment meaningful to the lives of all people living in the United States. In 1920, the ACLU released its first report, ‘Illegal Practices of the United States Justice Department,’ that focused on abuses occurring under Attorney General A. Mitchel Palmer. One of the co-signers was future Supreme Court Justice, Felix Frankfurter, then a Harvard Law student.

The ACLU recognizes that the United States, like every country, has the right to control who enters the country, to enforce the integrity of its borders, and to set immigration policy. The ACLU believes that this policy must be consistent with our American values of fairness and the tradition of welcoming immigrants. While our government can determine immigration status and enforce immigration laws, it should act fairly, humanely and in accordance with constitutional norms of due process and equal protection, as well as adhering to U.S. obligations under international law.

In the 1930s and ’40s the ACLU’s immigration work was led by its West Coast affiliates and centered around two areas: protecting the basic due process rights of non-citizens and ensuring that First Amendment protections were applied to those speaking out or assembling for political purposes. These same affiliates were also the first to lead the ACLU in protesting when racial prejudice and war hysteria fueled the forcible relocation of almost 120,000 Japanese Americans. The ACLU sponsored two Supreme Court challenges to the federal government’s evacuation and internment of Japanese Americans which, although unsuccessful, set an important precedent for contesting unlimited government power in future wartime crises.

The Immigrants’ Rights Project (IRP) was formally established in 1987 to enhance and expand the ACLU’s advocacy on behalf of non-citizens. For almost three decades now – under the leadership of founder Lucas Guttentag – the project has played a pivotal role in most of the major legal battles in the U.S. for immigrants’ rights. IRP conducts the largest litigation program in the country dedicated to enforcing and defending the constitutional and civil rights of immigrants and to combating public and private discrimination against non-citizens.

Since IRP’s founding, the ACLU has litigated major class action suits, challenged discrimination in the asylum system, the constitutionality of the Immigration Marriage Fraud Act, indefinite detention of Haitian refugees at Guantánamo, denial of employment authorization to eligible refugees, and imposition of unconstitutional document fraud penalties. A nationwide class action against the U.S. Attorney General and the head of the Immigration and Naturalization Service (INS) alleging violation of domestic and international laws in denying asylum to Salvadorans and Guatemalans fleeing political repression in the 1980s led to a landmark settlement, American Baptist Churches v. Thornburgh, benefitting more than 250,000 refugees. Many of those denied asylum now had the opportunity to seek legal asylum in the United States and the INS agreed to readjudicate claims for refugee status which had been denied after 1980.

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