Saturday, May 15, 2010
Overqualified, evidently
So, I'm actually READING the new Arizona immigration law, which I guess means I'm doing a better job of things than AG Holder. Here's the text of it, in case you'd care to do the same.
I'm looking for the part which will lead to the supposed Mexican Apartheid/Holocaust, and I'm not finding it. Nor can I find, at least in what I've read so far, anything that indicates police can stop people solely for being brown.
Of course, I'm not a lawyer. I could be wrong, and here's your chance to prove it to me. Find the actual language of the bill that violates the US Constitution, or the civil rights of any citizen, as defined in the Constitution.
I'm looking for the part which will lead to the supposed Mexican Apartheid/Holocaust, and I'm not finding it. Nor can I find, at least in what I've read so far, anything that indicates police can stop people solely for being brown.
Of course, I'm not a lawyer. I could be wrong, and here's your chance to prove it to me. Find the actual language of the bill that violates the US Constitution, or the civil rights of any citizen, as defined in the Constitution.
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Okay, how's this: there is an established right to free interstate travel on the part of US citizens (see, i.e., US v. Guest: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0383_0745_ZS.html). I am a US Citizen and absolutely have this right.
The Arizona law requires that anyone stopped in Arizona furnish on demand proof of citizenship, including:
1. A VALID ARIZONA DRIVER LICENSE.
2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.
3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.
4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED
STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.
Problem is, many states don't require "proof of legal presence in the United States before issuance." In fact, I can state under oath that I was not asked for proof of legal presence in the US for my initial driver's license, and they've not asked for anything more than a marriage certificate for my name change since. So technically, I don't have the proper documentation and can't travel to Arizona under the law as passed, because if stopped I could not prove citizenship. Although, again, it is my absolute constitutional right to do so.
In fact, on a side note, if I were put to the proof of citizenship, I'd fail. My passport is expired and therefore not valid. I don't have a certified copy of my birth certificate, only a hospital copy. And with many people now being in favor of yanking citizenship from "anchor babies" I'm doubly screwed - since my father was adopted and my mother half-adopted and their papers disappeared long before they both died, I can't prove my parent's citizenship either. So for all the authorities know I could be here totally illegally.
My only saving grace? I didn't inherit my father's dark complexion, brown eyes and black hair (we often wondered if he was Eastern European or Hispanic or what). Instead I have blue eyes and my mother's fair skin. So the chances of my being actually asked for these documents if stopped for any reason are miniscule.
Therefore, the Arizona law is unconstitutional as applied to me. I'm not planning on going to Arizona this year, so I'm not certain I'd have standing to challenge it. But I can't be the only one.
The Arizona law requires that anyone stopped in Arizona furnish on demand proof of citizenship, including:
1. A VALID ARIZONA DRIVER LICENSE.
2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.
3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.
4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED
STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.
Problem is, many states don't require "proof of legal presence in the United States before issuance." In fact, I can state under oath that I was not asked for proof of legal presence in the US for my initial driver's license, and they've not asked for anything more than a marriage certificate for my name change since. So technically, I don't have the proper documentation and can't travel to Arizona under the law as passed, because if stopped I could not prove citizenship. Although, again, it is my absolute constitutional right to do so.
In fact, on a side note, if I were put to the proof of citizenship, I'd fail. My passport is expired and therefore not valid. I don't have a certified copy of my birth certificate, only a hospital copy. And with many people now being in favor of yanking citizenship from "anchor babies" I'm doubly screwed - since my father was adopted and my mother half-adopted and their papers disappeared long before they both died, I can't prove my parent's citizenship either. So for all the authorities know I could be here totally illegally.
My only saving grace? I didn't inherit my father's dark complexion, brown eyes and black hair (we often wondered if he was Eastern European or Hispanic or what). Instead I have blue eyes and my mother's fair skin. So the chances of my being actually asked for these documents if stopped for any reason are miniscule.
Therefore, the Arizona law is unconstitutional as applied to me. I'm not planning on going to Arizona this year, so I'm not certain I'd have standing to challenge it. But I can't be the only one.
And another thing (warning: rant) I'm increasingly appalled at the number of people who are not only handing over these constitutional rights without a peep, but are positively wrapping them up in pretty paper and begging the government to take them. Why, why, why is it that the same people (in general) that are ready to take up arms to keep the government from adding additional regulations to health insurers or imposing new taxes are actively advocating handing over the fundamental things like habeas corpus rights, the right of a person to be secure from search and seizure in their own home without probable cause or even reasonable suspicion, Miranda rights, and torture? I mean, the former are certainly serious issues but we're talking financial regulations, fines and bankruptcy at worst. The latter are inherent issues of freedom that can land you in prison without recourse or proper charges being brought.
Are we so very naive that we believe that these things won't ever be used against us because we're not criminals, illegals, or terrorists? I must say that's a very trusting view of the world - do you know how many conversations I had as a prosecutor that went something like: "Oh crap, Officer Friendly just screwed up and violated this guys' rights big time, so how do I fix it so we don't get sued?" What do you think happens when they don't have to worry about fixing it?
My great-grandmother died when I was 19. Up until her death, she was very active. She did her own shopping, gardening, and such. But she did this by walking to the store and bringing stuff home in a wagon. She had no driver's license, and no credit cards. A child of the depression, she paid cash. In Arizona, she'd now have to go get a license or non-driver id. Not to do something, like to drive or to take out a loan. Just to be. I find that wrong. I find it offensive. And I find it dangerous.
'K, sorry, rant over. I suppose I should rant on my own blog next time, shouldn't I? Sorry!
Are we so very naive that we believe that these things won't ever be used against us because we're not criminals, illegals, or terrorists? I must say that's a very trusting view of the world - do you know how many conversations I had as a prosecutor that went something like: "Oh crap, Officer Friendly just screwed up and violated this guys' rights big time, so how do I fix it so we don't get sued?" What do you think happens when they don't have to worry about fixing it?
My great-grandmother died when I was 19. Up until her death, she was very active. She did her own shopping, gardening, and such. But she did this by walking to the store and bringing stuff home in a wagon. She had no driver's license, and no credit cards. A child of the depression, she paid cash. In Arizona, she'd now have to go get a license or non-driver id. Not to do something, like to drive or to take out a loan. Just to be. I find that wrong. I find it offensive. And I find it dangerous.
'K, sorry, rant over. I suppose I should rant on my own blog next time, shouldn't I? Sorry!
Thanks for commenting.
Interestingly enough, you answered my question exactly as asked. You state why you believe the Arizona law is hostile to the rights of actual citizens, and you also argue that the law is an expansion of government power.
To me, the arguments are heavily linked. I've often argued to my wife that all too often, we assume the benevolence of the state; that is, we assume that the state will use the power we give it for the purposes we intend.
(Put another way, as another blogger once wrote of the Patriot Act, we should never give George Bush the power we wouldn't dare give to John Kerry.)cont. below
Interestingly enough, you answered my question exactly as asked. You state why you believe the Arizona law is hostile to the rights of actual citizens, and you also argue that the law is an expansion of government power.
To me, the arguments are heavily linked. I've often argued to my wife that all too often, we assume the benevolence of the state; that is, we assume that the state will use the power we give it for the purposes we intend.
(Put another way, as another blogger once wrote of the Patriot Act, we should never give George Bush the power we wouldn't dare give to John Kerry.)cont. below
So, here's the thing: most of the criticism leveled at the law are based on the idea that it is racist or discriminatory against non-citizens. I will concede, based on my acceptance of your stated objection, that the imprecise wording of the law may diminish the rights of the individual citizen, depending on how government wields the law.
This is the only line of argument I could accept. I find the argument that preventing foreign nationals from entering our nation illegally is somehow human rights abuse to be laughable at best.
So, is your objection to the law based solely on its possible misuse on citizens?
Do you feel that Arizona has the right to keep illegal immigrants out?
Would you support a more tightly-worded law that allows a state to maintain its border security?
Exactly to what rights should someone who enters this country illegally be entitled?
I want you to know that I'm just trying to figure out your fundamental assumptions here; as in Mathematics, all arguments ultimately depend on the axioms that a person accepts. If A leads you to B, but leads me to D, that's something we can hammer out. If A leads you to B, but X leads me to Y, we may end up talking past each other.
PS: Thanks again for taking the time to think and type out your thoughts. I really do appreciate it.
This is the only line of argument I could accept. I find the argument that preventing foreign nationals from entering our nation illegally is somehow human rights abuse to be laughable at best.
So, is your objection to the law based solely on its possible misuse on citizens?
Do you feel that Arizona has the right to keep illegal immigrants out?
Would you support a more tightly-worded law that allows a state to maintain its border security?
Exactly to what rights should someone who enters this country illegally be entitled?
I want you to know that I'm just trying to figure out your fundamental assumptions here; as in Mathematics, all arguments ultimately depend on the axioms that a person accepts. If A leads you to B, but leads me to D, that's something we can hammer out. If A leads you to B, but X leads me to Y, we may end up talking past each other.
PS: Thanks again for taking the time to think and type out your thoughts. I really do appreciate it.
So, is your objection to the law based solely on its possible misuse on citizens?
Primarily. I feel that it is unconstitutional based on the impingement of free travel. I feel it is unconscionable because anyone who wishes to impose this burden on others should shoulder it themselves by being required to go back to the ancestor who immigrated here and prove they came legally. Otherwise we're all just anchor babies to the umpteenth degree. As to the racism, I do believe that this law hits legal Hispanics harder than non-hispanics, legal or illegal, because they are readily identified as a group. So we are asking citizens to shoulder an undue burden.
Do you feel that Arizona has the right to keep illegal immigrants out?
We as a nation have the right to keep illegal immigrants out. I don't believe the States should have the right to restrict travel state to state, because it inherently involves unconstitutional restrictions on interstate travel for citizens - I can't think of a whole lot of enhanced State border security which wouldn't be inconvenient at best and intolerable at worst. Are we all to carry passports? A national identification? How 'bout a nice computerized one that can track your travel state to state? I think the feds should be passing and enforcing border security rules on a national level.
Would you support a more tightly-worded law that allows a state to maintain its border security?
See above - nope. I would support increased Federal security at the national borders, however.
Exactly to what rights should someone who enters this country illegally be entitled?
In this case, it's not really a matter of their rights. It's the rights of anyone who is in, or travels through, the state of Arizona. More than that, it's the limits we choose to set on our government to prevent corruption. It's somewhat analagous to search and seizure law, in my mind. If someone's fourth amendment rights are violated, we do not allow any evidence obtained due to that violation to be used against them. Not because we're overly concerned about the individual's rights, although we do pay lip service to them, but because it then provides an incentive to the government to perform only just and legal searches, and a big disincentive to perform illegal ones. I don't want to give any officer the incentive to do a pretextual stop on anyone, Hispanic or otherwise. Rights that I think they should have? That would take a whole other post, but I take a look at the crime and kind of extrapolate from what we do with analogous criminals. We give them Miranda warnings, and hold them in humane conditions, and contact their embassies, etc. Whatever we would want another country to do to us if we were guilty of a misdemeanor-level crime there. Before they're caught? That's where we may have to agree to disagree. If I see person X on the street, I don't think I can presume X to be illegal without at least reasonable suspicion and possibly probable cause. Therefore, until I have some kind of proof otherwise, I think X has all the rights I do.
Primarily. I feel that it is unconstitutional based on the impingement of free travel. I feel it is unconscionable because anyone who wishes to impose this burden on others should shoulder it themselves by being required to go back to the ancestor who immigrated here and prove they came legally. Otherwise we're all just anchor babies to the umpteenth degree. As to the racism, I do believe that this law hits legal Hispanics harder than non-hispanics, legal or illegal, because they are readily identified as a group. So we are asking citizens to shoulder an undue burden.
Do you feel that Arizona has the right to keep illegal immigrants out?
We as a nation have the right to keep illegal immigrants out. I don't believe the States should have the right to restrict travel state to state, because it inherently involves unconstitutional restrictions on interstate travel for citizens - I can't think of a whole lot of enhanced State border security which wouldn't be inconvenient at best and intolerable at worst. Are we all to carry passports? A national identification? How 'bout a nice computerized one that can track your travel state to state? I think the feds should be passing and enforcing border security rules on a national level.
Would you support a more tightly-worded law that allows a state to maintain its border security?
See above - nope. I would support increased Federal security at the national borders, however.
Exactly to what rights should someone who enters this country illegally be entitled?
In this case, it's not really a matter of their rights. It's the rights of anyone who is in, or travels through, the state of Arizona. More than that, it's the limits we choose to set on our government to prevent corruption. It's somewhat analagous to search and seizure law, in my mind. If someone's fourth amendment rights are violated, we do not allow any evidence obtained due to that violation to be used against them. Not because we're overly concerned about the individual's rights, although we do pay lip service to them, but because it then provides an incentive to the government to perform only just and legal searches, and a big disincentive to perform illegal ones. I don't want to give any officer the incentive to do a pretextual stop on anyone, Hispanic or otherwise. Rights that I think they should have? That would take a whole other post, but I take a look at the crime and kind of extrapolate from what we do with analogous criminals. We give them Miranda warnings, and hold them in humane conditions, and contact their embassies, etc. Whatever we would want another country to do to us if we were guilty of a misdemeanor-level crime there. Before they're caught? That's where we may have to agree to disagree. If I see person X on the street, I don't think I can presume X to be illegal without at least reasonable suspicion and possibly probable cause. Therefore, until I have some kind of proof otherwise, I think X has all the rights I do.
BTW - Several law professors in Arizona have done a preliminary analysis of the legalities here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617440.
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