Your Papers, Please

I got this question recently in a mail:

“From my quick understanding I don’t see why it’s a big deal to ask the immigration status of someone that has potentially broken the law?”

The main reason that it would be a big deal[1] is that it violates the Fourth Amendment of the Constitution of the United States. (Wikipedia)

Here’s the text of amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added)”

In modern terms, that means that the Constitution provides that neither you nor your stuff will be searched unless the authorities have a good reason (“probable cause”) and have obtained a warrant (“Oath or affirmation”). A lot of the recent changes in law in the U.S. are actually unconstitutional as well—like warrantless searches—but they haven’t had to withstand a judicial test yet (or their unconsitutionality has been ignored). The NSA eavesdropping, or wiretapping, program—started by Bush and cheerfully continued by Obama—is unconstitutional. The point is that the right of a citizen to go about his or her business without being bothered by the authorities is greater than the right of the authorities to use any means necessary to find potential criminals.

The likely result of such a law would be that it legalizes harassment. Without such a law, there’s nothing stopping a police officer from approaching a person and asking for his or her papers. It’s just that, if they were wrong and got a legal resident instead, that person is within his or her rights to file a grievance or seek redress. With a “papers, please” law in place, a person no longer has recourse, no matter how many times they get stopped. That is, without the law, the authorities have to be more careful not to offend legal residents or they’ll get in trouble. With the law, they are free to do whatever the f$#k they want—to be as racist as they please—and the citizenry couldn’t do anything about it.

This, of course, opens the door to a horrifically fearful society, ever more mistrustful of the government that should be protecting them.

Take a look at all of the people who currently think the law is a good idea: lily-white, all of them, I’d imagine. They run pretty much zero risk of getting stopped for questioning, so they nearsightedly think it’s a great idea—”if it’ll just get those damned beaners out of our country”.

But that’s not America. We have a Constitution that protects it’s citizens, regardless of skin color or mastery of the English language. If you don’t like it, go to Australia or some other country that will welcome your racist ass. Ha! America, love it or leave it.

Arizona’s Law

Luckily, the law in Arizona—though extremely stupid—is not as clear-cut and powerful as you’ve probably been led to believe. The article, New Arizona immigration law and ID demands (The Identity Project), has a very good overview. In particular, any person so stopped by the police has the right to refuse the request to show papers and to be on their way. The Arizona law must be hated by all Arizona cops because it obligates them to make a “reasonable attempt […], when practicable, to determine the immigration status of the person.” However, that person is under no similar obligation to “assist in that “attempt .. to determine” your status, to answer any questions, to carry or produce or display ID, or to consent to a search for evidence of identity or immigration status.” That is, the law forces the authorities (like the police) to harass citizens, which is going to just turn out great for everyone involved.

The difference between the Arizona law as it is written—which seems to be constitutional—and the law as many would like it to have been written—which would have made them excellent East Germans, but very poor Americans—is that people are presumed innocent in the United States. Still. I know, right? It’s surprising, isn’t it? What with Bush gleefully detaining citizens for years without charges (seeya Habeus Corpus!) and Obama ordering assassinations of suspected terrorists who are also American citizens—all without a judge or a jury, just an executioner—you’d think the whole “innocent until proven guilty” trope would have fallen by the wayside a long time ago.

So, the section in the Arizona law that states that “[a] person is presumed to not be an alien who is unlawfully present in the United States if the person provides [a form of identification]” is highly misleading because, in fact, each person is presumed innocent by the U.S. Constitution, which does not limit itself to U.S. citizens, but to people in the U.S.A. The amendment deals with “people” and “persons”, not “citizens”. This is a fine distinction of which firm believers in American Exceptionalism—like almost the entire Congress and Senate—are blissfully unaware. This is the misunderstanding that led to the kerfuffle recently about reading the alleged Times Square Bomber his Miranda Rights. Many Senators and Congresspeople were surprised to find that they hadn’t yet managed to reduce the 21st-century U.S. to 17th-century France and wondered why the police even had to bother with rights and warrants when they already knew they had the right guy. Thankfully, though, we have decent laws—for now—that grant those suspects freedom when, as has so often been the case, the authorities have once again gotten the wrong guy.[2]

The article goes on to provides the soundest advice for anyone these days, which is to simply avoid contact with the authorities in an official capacity.[3]

“Under this law, there is nothing to be gained, and much potentially to be lost, by voluntarily showing ID, even valid ID, or answering any questions. […] So the best way to defend your rights is to use them: Don’t talk to police about your immigration status or anything else, terminate any police encounter as soon as possible, never consent to any search, and assert your right to remain silent and to consult a lawyer.”

You have the right to not answer any questions and to walk away. Whether you’ve done anything wrong or not, that’s probably the best advice because, more and more, there are enough laws in the States to hang pretty much anyone. Unfortunately, that’s the way it is right now. It makes it a bit of war between the citizenry and the authorities, but there you have it.