Liberty and FreedomApril 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.