Lest we ever think otherwise, the right’s reverence for a painfully restricted version of the Constitution, in defense of “liberty,” only goes so far. Specifically, it only goes as far as the economic liberty interests of the propertied few. The rest of the country — well, to Hell with them.
There’s no surer reminder of this fact than Arizona’s new, hyper-restrictive immigration bill, which permits police officers to demand identification from, and subsequently deport, any person whom they “reasonably suspect” of being in the country illegally. Far-right distinctions notwithstanding, this is a “papers-please” world we’re building – without specific criteria to evaluate suspicion, the comfort provided by the act’s reminder that officers “may not solely consider race, color, or national origin” is a paper shield — and even some conservatives are worried.
The bill’s constitutional toxicity lies in two doctrines (the first of which a friend had to remind me of): first, that while the federal government enjoys substantial deference in enacting immigration laws, states cannot draw on that deference to justify more restrictive regimes (Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 418-19 (1948), see also Plyler v. Doe, 457 U.S. 202, 224-25 (1982)); and second, that “equal protection of the laws” applies to anyone in the country, regardless of their right to be here. The second deserves some more analysis.
Governments can, obviously, defend their borders. But they cannot leverage the deference governments must enjoy in securing their borders into a right to conduct an all-out holy war against foreigners, or undocumented workers. While “undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy,’” the state can’t act against them unelss it can identify a motivation beyond a bare desire to harm, and tailor the solution fairly to a substantial state issue. Id. at 223.
Further, the state cannot make anyone an alien to its laws — even an alien.
To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection
Id. at 213-14.
Equal protection is emphatically not about protecting people we like. It’s about protecting people we don’t like from the majority’s all-too-human instinct to dislike without cause, and react out of proportion with any real cause. Acknowledging our constitutional history and heritage honestly, even without reference to federalism concerns, Arizona’s new policy, ahem, “crosses some borders.”
This will be litigated, and it will be close. Until then, we can casually note the parts of the Constitution that the right chooses to emphasize, and the parts it glosses over, and wonder whether anyone ought to vote for a bloc that heartily embraces police-state tactics against unpopular minorities, while waxing poetic over the freedom to contract.