It was pointed out to me in the comments on my last post that the amendment I was looking for is the Fourteenth Amendment, ratified July 9, 1868 (once again, this is coming out of my copy of Great Documents of American History):
"Section 1. All persons born or naturalized in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."
There it is, spelled out in black and white. You can't get it any clearer.
I was right.
The Constitution says if you are born here, you are a citizen. No ifs, ands, or buts. That's it.
Not only that, but read the rest. Do you see the number of times "any person" pops up? "Nor shall any State deprive any person of life, liberty, or property, without due process of law," know what that means?
Maybe I'm misinterpreting that, but to me that means that until they can prove someone is here illegally, they are subject to the same protections as everyone else. Which is really just common sense if you think about it, I mean, what if they really ARE here legally and you assume they're not? You go treated them all suspiciously and try to get them deported and then they wave a passport or citizenship papers in your face.
Considering we're the land of the free and practically everyone was originally an immigrant (once again, lemme point out that the Native Americans should have had the right to have us all deported), we have a really lousy view on immigrants now.
My point is, not only is this bill that Arizona just didn't pass unconstitutional, so is what I call the "Rock Paper Scissors" law (as in, "if a cop asks for 'papers' and I say, 'scissors,' do I win?"). People do not have to hand over their papers without a warrant (btw that one's not just in the Constitution, that's in the Bill of Rights {Fourth Amendment. "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" etc... Also please note it says "persons" not "citizens." This law pertains to not citizens, and not just people here legally. If they meant only legal residents, they'd have said so.}... So you can't even make an argument that the Founding Fathers wouldn't have agreed with this... I disagree with that argument, but I'm sure there are people who don't think anything after the Bill of Rights counts...). I'm pretty sure "due process" is not seeing that someone is hispanic and requesting their papers. Americans are not required to keep their papers on their persons. Americans are not required to hand them over just 'cause a cop asks. A judge has to sign off on it and there has to be probable cause.
PHYSICAL APPEARANCE IS NOT PROBABLE CAUSE WHEN THE CRIME IS IMMIGRATION STATUS.
Actually, there is pretty much no CONSTITUTIONAL way for Rock Paper Scissors to be enforced....
While I agree with the main thrust of your argument, I'm pretty sure that you don't have much 4th Amendment protection against being asked for your ID. I don't know for certain, but I'd be willing to be that there are a large number of circumstances in which they have every right to demand your ID. You could probably find the case law if you tried hard enough.
ReplyDeleteI considered throwing in something about how you can be asked for your license when you're driving, but then this little voice in my head wondered whether that, like airport security, is maybe on the line of unconstitutional, so I decided to ignore it since it didn't really make much difference in terms of Arizona.
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