Friday, May 7, 2010

God’s Law, Man’s Law, or Just a Cynical Attempt to Change the Political Trajectory in Arizona: Why the Constitutionality of Arizona State Senate Bill 1070 Does Not Matter

Yesterday the spring semester ended for me, and I spent the first day of summer idleness reading Arizona State Senate Bill 1070, the notorious “show me your papers” immigration bill.  And I read the whole thing too, not just the naughty bits. 

I guess I’m just a big nerd, but I was curious just as to what the bill contained so that I might make my own informed judgments about the bill before I wrote about it.

And honestly I expected the bill to read like the old Southern Black Codes though not as explicit in its aim and targets.  But I was disappointed.  No real fireworks here.  Everything in the bill is pretty much run of the mill and simply replicates laws already on the books.  However, the only thing that stands out is that infamous, oft-quoted line, “WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULL PRESENT IN THE UNITED STATES.”

But herein lies the greatest point of contention;  does this line negative render the whole bill unconstitutional?
Of course, the most obvious question is just what is it that might arouse “reasonable suspicion” of being an illegal immigrant?  The only thing I can think of that might draw such scrutiny is ethnicity.  But does that make the law unconstitutional?

But let’s take a second to step back and look at what causes a law to be unconstitutional or not.  Now, I’m not a lawyer or a constitutional scholar;  my expertise is in reading, explicating, and teaching texts;  however, the only real difference between what I do and what a lawyer or constitutional scholar does is the type of texts.

Anyway, from what understanding I have, the U.S. Constitution gains its authority from this notion of a certain natural law that precedes directly from God by the very virtue of our humanity that guarantees us certain rights—the foremost being freedom—that may not be taken or abridged by any man or government.

These rights include, among others, exercising our free will, thinking whatever thoughts we would like to think, saying whatever we would like to say, worshipping as we wish to worship, protecting ourselves, owning and using personal property as we see fit, and moving about freely.

In my best estimation, then, and you lawyers and constitutional scholars might be able to help me with this, the measure of the constitutionality of any statue becomes whether or not the statute violates natural law by impinging on or impeding the exercise of one’s God given rights.  If the statute does, then it falls possibly into the realm of positivism.

Positivism runs counter to natural law;  positivism accords authority to the government and government officials by virtue of their position as elected legislators.  Through positivism the government enacts laws that seek to regulate human beings by virtue of the groups to which they belong.

So, does Arizona State Senate Bill 1070 violate this natural law?  Does it impinge upon or impede the exercise of one’s natural rights?

Prima facie the bill does perhaps not violate the U.S. Constitution simply because those the bill is aimed at, illegal aliens, are not covered under the U.S. Constitution.  But in the same instance, the enforcement of the bill does threaten to violate the rights of Mexican Americans.  So, the problem is not the bill, but the enforcement of the bill. 

But, and this is the meat of my argument, the bill was never meant to be enforced;  the bill was enacted in a predominantly Republican state by a Republican senate and signed by a Republican governor simply for the effect that bill might have.  It was enacted as a measure of self-preservation.

At this time, Arizona’s population is approximately one third Hispanic, and the number of Hispanics is rapidly growing.  And Arizona’s growing Hispanic population is tending more and more to vote Republican, so conceivably this bright red state stands the chance of turning blue should this trend continue.

Keep in mind that when Jan Brewer served as the secretary of state in Arizona, following the 2004 elections, she led an effort that either purged or blocked from voting about 100,000 Arizonians, mostly Hispanic.   The following year in the city of Phoenix, which was trending Democratic and Hispanic, one in three new voter registration applications were rejected with no real explanation.

So, regardless of this talk of protecting the good people of Arizona from this brown horde of illegal aliens, the Republican legislature in the state of Arizona hopes that the effect of this bill is to drive from the state of Arizona those brown bodies it deems undesirable, who might just vote Democratic, and make entering the state as undesirable as possible to any other brown bodies.

Incidentally, this same desired effect drove the implementation of the Black Codes in the post-Civil War South.  The codes were meant to hamper the movement of African Americans, make movement from one place to the next as difficult as possible with the hope that tired of the restrictions and harassment, current African American residents of those states would just pick up and leave, and other African Americans would not move to these areas.  Coincidentally, at the time African Americans were overwhelmingly voting Republican in a predominantly Democratic South.

Of course, this went against their own interests just as the immigration bill does now, because these undesirable bodies they sought to rid themselves of were integral to the economy in those states.  With these brown bodies gone, where does the cheap labor come from?  Who does those jobs no one else will do?  It is a precarious balancing acting trying to balance racial and ethnic prejudice and political expediency on the one hand with economic exigency on the other.

But again, the GOP has chosen political expediency and self-preservation over any real solutions to real problems.  However, I believe in doing so, the state of Arizona simply postpones the inevitable and grows and cements its own opposition.

So, in the end, I wouldn’t be so worried about whether or not the bill is unconstitutional or not;  I would concentrate on the effect it has.  The is what the Arizona GOP is closely watching.
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