Constitutional Creep

Where exactly is the rub in Arizona’s immigration law?  Arizona’s legislature responded to cries of constitutional offense by amending the law, but stopped short of repeal.  By passing a questionably-constitutional bill, Arizona commits the most insidious legislative offense: Constitutional Creep.

Constitutional Creep is what happens when legislatures find permissive loopholes in governing documents.  Legislators prey upon a combination of fear-mongering and constituent disinterest to force vague or offensive bills through the loopholes, therefore creating larger loops awaiting larger legislation later on.

Legislation means much more than mere statutory language.  Typically the way people implement a bill—which provisions officials enforce, and which they ignore—is what actually defines what a statute means in practice.

SB 1070 does not fall far outside the boundaries of laws most states already have in effect.  Arizona’s immigration law is offensive, but all liberty-infringing legislation is offensive, and nearly all legislation is liberty-infringing.

For example, the text of the bill forbids racial profiling “except to the extent permitted by the United States or Arizona Constitutions.”  Both SCOTUS and the Arizona Supreme Court have explicitly determined that “ethnic factors” are relevant considerations when it comes to immigration issues.

Indeed, it was in 1975 that the United States Supreme Court determined that the US Constitution permits race to be considered in immigration enforcement.  1975 becomes a significant date, because immigration outcry tends to parallel the national economy, and in the mid-70’s outlook seemed perhaps as grim as it does today.

Though the bill’s racial language seems shocking, nearly all legislation is designed to permit profiling.  Vagabond laws precluding individuals from walking aimlessly overlap with loitering laws that prohibit standing still, for instance, so that officers may at their discretion stop nearly any citizen in most states.  Only when officers stop disproportionately more of one race than another in response to these omni-prohibitory laws does the presumption shift away from fair officers’ evenhanded application.

Similarly, the practical effect of Arizona’s law remains to be seen.  SB 1070 calls for immigration officers to ask any stopped individual whether he is a United States citizen.  If the individual answers “no,” he must provide documentation that proves he has a right to reside in this country.

If the individual answers that he is an American citizen, immigration officials may not demand further proof of right to reside.  When was the last time you were asked to produce your birth certificate?  Constitutionally the presumption falls in favor of citizens, as it should.

Constitutional offense turns not on the notion of “fairness,” but rather on questions of natural rights and the most effective ways a minimalist government can protect citizens without interfering with our lives.

The answer to preventing offensive bills like SB 1070 from passing is the same as the best method for keeping Constitutional Creep to a minimum.  Citizens should focus on keeping legislation small, government minimal, and keeping government out of our backyards.  Because once government is in our backyards no amount of Constitution-waving will keep them from demanding papers, and proof, and generally acting like, well—constitutional creeps.


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One response to “Constitutional Creep

  1. Do you think that constitutional creep is an element of structural violence, where a class of citizens are violated through a series of individually innocuous acts? That is, one police officer stopping one Hispanic white man for three minutes because they get “a feeling” is not necessarily a bad thing. In fact, we want police to trust their gut. But if police on the whole specifically target Hispanic white men for routine stops, which in turn undermines their ability to obtain prosperity, that is structural violence.

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