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Liberty and Freedom

April 24, 2010

I probably don’t need to say much about this, but I thought I’d just point out how outrageously unethical the new Arizona immigration law is. It’s not just a bad law, it’s an unethical law, an unjust law, and it cuts deep into liberty and freedom — values that, I’m under the impression, are supposedly important to folks who have been making quite a stink lately. [Here's the actual law.]

Some people (like, Fox News and CNN) are saying that liberal critics of the law are concerned about racial profiling. To my mind, racial profiling is the least of the concerns. A bigger concern is arbitrariness.

Arizona basically now requires law enforcement to demand papers from any person that any officer deems suspicious or illegal in any way, and permits those officers to detain those people on these grounds alone. It doesn’t specify the look of that person. It doesn’t specify the nationality of that person. It just specifies that a cop must be suspicious of that person being in the country legally. How does it ensure that the decision to request papers or detain a person won’t be based on the arbitrary whim of the police officer? It doesn’t. Presto. Carta blanca.

This differs dramatically, I think, from current criminal law which enables an officer to arrest or detain a person with “probable cause,” where that probable cause is a reasonable suspicion that a person has committed a crime. Criminals come in all shapes and sizes, so some non-arbitrary evidence — blood stains, eye-witnesses, a weapon, so on — is required that will distinguish the criminal from the non-criminal. Not so with citizenship. With citizenship, there is no non-arbitrary evidence. Some attributes may function as decent proxies for non-citizenship — brown skin, a Mexican accent, dirty clothes and shoes — but those proxy attributes aren’t even close to “evidence” in the traditional sense of the term. Many hard-working and voting citizens also have those attributes (about 16 million naturalized citizens and 37 million foreign born).

This means, in effect, that you will need to carry your papers, or at least some legal documentation, with you at all times, no matter what you’re doing. If you go to the gym. If you go on a run. If you take the dog for a walk. You need to have your papers.

Oh, sure, clean white people with ‘merkin accents and nice shirts will likely not fall victim to the vagaries of this law. They’re way too American, despite the fact that they may be Canadian.

As it happens, the Governor is apparently somewhat concerned about the racial profiling implications of this law (not the above-mentioned problem with arbitrariness and universalizability), so she’s instructed the Arizona Peace Officer Standards and Training Board to establish a training program for officers on how to “appropriately implement Senate Bill 1070.” Nothing cops like more than “sensitivity training.” And hey, there’s no mention in that executive order either of just what one is to be sensitive to.

Even if nobody falls victim to the law, this law cannot be justified. I fully and completely expect it to be deemed unconstitutional if it ever comes to the Supreme Court. But, then, I’m not a legal scholar, so I’m happy to be shown the error in my reasoning.

8 comments

  1. What part of Illegal doesn’t the Left get?

    All of it.

    It’s not “fair” that they came here Illegally and we want to treat like they came here Illegally.

    It’s not “fair” to the children.

    Children, fear, “fairness” and “Racism”.

    The pure distillation of just about any Leftist.


    • The point you’re missing is “they” could be you. Absolute power corrupts absolutely. Just ask a gentile, law abiding German citizen cira 1930′s.


    • Yeah, that’s the point. Plainly, someone who is here illegally ought not to be permitted to be here until they secure legal permission to be here; but simply because it is true that there are illegal aliens doesn’t mean that this therefore automatically authorizes law enforcement to select out of the crowd people who, even by strong statistical proxy, bear an attribute that is shared by other violators of this law. The simple prospect of such a thing should worry anybody who purports to care about freedom.


  2. Ben:

    I don’t read the law as broadly as you do.

    Here is the provision in question:

    E. NOTWITHSTANDING ANY OTHER LAW, A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW AND THIS SECTION.

    So you have to violate a civil traffic law AND have a reasonable suspicion to believe the person is here unlawfully.

    I don’t read this as authorizing the stop of any Mexican looking person in a car, but rather that once stopped, say for speeding, the cop can ask for your driver’s license to verify residence.


    • Even in that case, there must be some non-arbitrary evidence suggesting that they’re operating the vehicle in violation of the law. The police can’t just arbitrarily stop someone because they happen to be driving an ugly car, for instance.

      And it’s definitely true that they can ask you for your license when you’re stopped, but they can’t stop you because you look like you might not have a license — unless you look like a teenager, in which case I suppose that would be evidence of a violation of the law.


      • I agree – they definitely have to have a non-arbitrary reason to make the initial stop BEFORE they can even get into checking whether you are here legally.


      • Look like a teenager? Is that what it was. A fair cop, then. I always thought the police tailgated and otherwise harassed me because they were jealous of my V8 Sweeney Monster (aka the Rover P6). Perhaps I should have washed it and worn a tie.


  3. [...] How to Avoid Racial Profiling April 26, 2010 One of the major concerns with the new Arizona immigration law, apparently, is that it will inspire a wave of racial profiling. I said a few days ago that racial [...]



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