For seventy years after the Civil War Amendments were ratified, the Supreme Court sought to nudge Southern courts and legislatures toward racial justice. But the case-by-case messaging was largely lost on the relevant actors. In 1954, the Warren Court struck a systemic blow for racial justice in Brown v. Board of Education. State legal mandates that segregated public schools were unconstitutional. A few years later, the Court sought systemic solutions to racial injustice in the state criminal justice systems. Although reforms like requiring states to provide counsel for indigent defendants would benefit all races, this article argues that the Court saw Black Americans as particularly affected by injustices in state criminal justice system. From 1961 to 1968, the Court decided five landmark criminal procedure cases that sought to advance racial justice. The problem? States found “workarounds” for most of those guarantees. Defendants, including Blacks and other minorities, might be slightly better off today than they were in 1960, but only at the margin. Could the Warren Court have done better? Can courts do better today? The answer is a modest yes, at least as to some protections.

In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. The briefs and judicial opinions explicitly identify a coherent category of cases—interbranch cases. But these cases are treated haphazardly as a matter of doctrine. Within various doctrines, however, the same fundamental argument has been that interbranch suits are exceptional and not appropriate for judicial intervention. Even when that argument has been ultimately rejected, it has largely succeeded in preventing the judiciary from resolving the merits of these interbranch cases before they become moot.

This Article rejects the interbranch exceptionalism that obscures most discussions of these cases and asserts that the judiciary should address—and resolve—interbranch cases on the merits under its equity jurisdiction. It shows that the executive branch has not historically followed the justiciability positions it now asserts, but has in fact accepted and advocated for judicial intervention in the past. The executive branch has strategically adopted justiciability arguments recently to prevent judicial interference as it has asserted more robust and exclusive constitutional authority vis-à-vis Congress. The executive branch is better positioned to engage in constitutional self-help, and these justiciability arguments enable it to retain its constitutional advantage in interbranch disputes. A close analysis of each of these doctrinal justiciability arguments demonstrates that interbranch cases are not exceptional, however. And well-established traditions of equity—which parallel justiciability inquiries related to standing and the political question doctrine—establish the appropriate case-by-case inquiry into the judicial role in an interbranch case. The judicial power extends to all cases in equity arising under the Constitution, including interbranch cases. Courts should not shrink from that responsibility. When appropriate under traditional equitable principles, courts should decide interbranch cases in equity on the merits. Shirking that duty is not a passive virtue but a decision to allow the separation of powers to be determined by constitutional self-help.

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.

It is hard to not feel the heavy weight of the US’s current identity crisis. As the nation comes to grip with its past in a way perhaps not seen for over a hundred years, we struggle to understand that past, let alone carve out a way forward for the future. A microcosm of this struggle might be seen in the tension between the 1619 Project and the 1776 Unites project. On the one hand, the 1619 Project was launched in 2019 as an initiative to “reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.” Its proponents argue that the real foundations of the nation lay not in 1776, or in 1787–88 for that matter, but in 1619, when slavery was first introduced to the continent. The nation’s founding, as such, does not deserve our loyalty or respect given its dark, reprehensible nature. The 1619 Project’s reframing of the nation’s history in terms of slavery and its legacy has influenced the public mind and helped reorient scholarship. The project 1776 Unites, on the other hand, attempts to respond to the 1619 Project by explaining the foundational themes of the American experience as a story of self-determination, equality, and resilience. It was upon these values, 1776 Unites argues, that the US was founded. Among this war of alternative histories, one may find it difficult to come to terms with America’s legacy and what that legacy would mean for political action today.

I appreciate Professor Rebeiro’s thoughtful and generous review, and also the opportunity to respond. The Nation that Never Was makes several different claims. They are of different types: some are historical claims about how certain actors thought or understood certain documents; some are philosophical claims about what the implications of a particular theory are. Some are normative or predictive claims, about what would help us move forward as a nation. And sometimes claims contain elements of more than one of these categories.

I am more confident about some of these claims than others. For some questions I do not think it makes sense to say that there is a single true answer: history often comes down to interpretation. For others I do not think truth is even the right criterion—creating a national story, for instance, mixes art with history and is probably closest to policy choice. And I’m sure there is more to learn about all of them. In this response, I will try to set out the main claims, to clarify what type of a claim each is, and to explain why I find them compelling.

In the 1970s, the British Parliament passed a public safety law that required motorcycle operators to wear helmets. They ultimately provided an exemption for members of the Sikh community, because it was not possible to wear a turban and a motorcycle helmet at the same time. Lord Chief Justice John Widgery, who had opposed this accommodation, argued that because a barrier to riding a motorcycle did not itself impede any religious practice, the law as originally written did not interfere with religion at all: it interfered only with the freedom to ride a motorcycle.