By John W. Whitehead
“We’re going to continue to do business just as we’ve done it—we were prepared for 1070 as it was written when it went into law. For us, it isn’t a matter of having to re-create any wheel here, we already have it.”—Sgt. Trent Crump, a Phoenix police spokesman
If you’re dark-haired, brown-skinned and have the misfortune of living in Arizona in the wake of the U.S. Supreme Court’s ruling in State of Arizona v. United States of America, get ready to be stopped, searched and questioned. Then again, if you’re a citizen living in the United States, this is merely one more component of the police state that appears to be descending upon us.
Thanks to a muddled decision handed down by the Supreme Court on June 25, Arizona police officers now have broad authority to stop, search and question individuals—citizen and non-citizen alike. While the law prohibits officers from considering race, color, or national origin, it amounts to little more than a perfunctory nod to discrimination laws on the books, while paving the way for outright racial profiling.
In Arizona v. United States, one of this term’s most controversial cases, the Supreme Court was asked to determine whether federal law trumps Arizona’s immigration law, the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070). A divided Court struck down as unconstitutional key provisions pertaining to the criminalizing of illegal immigrants (for not possessing their federal registration cards while working, applying for work or soliciting work) and warrantless arrests by police, declaring that “the state may not pursue policies that undermine federal law.” At the same time, the Court unanimously affirmed the Arizona law’s “show me your papers” provision requiring police to check the immigration status of people they stop for any reason.
It’s a mixed bag of a ruling that is being hailed as a victory by spin doctors at all ends of the political spectrum. President Obama, whose administration challenged the Arizona statute as attempting to preempt federal law, hailed the ruling as a clear referendum on the fact that “Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system—it’s part of the problem.” Meanwhile, Jan Brewer, Arizona’s governor and a major player in the immigration wars, claimed the ruling as “a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens. After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.”
Yet no amount of spin can detract from the fact that this ruling does little to recognize or counteract the real danger inherent in S.B. 1070, which is the erection of a prototype police state in Arizona. As Sgt. Trent Crump, a Phoenix police spokesman, made clear, all the pieces are already in place—all they’re waiting for is the go-ahead.
By allowing Arizona police to stop and search people, citizens and immigrants alike, based only on their own subjective suspicions and visual observations, and by failing to address the core issue being debated here—namely, whether Americans have any Fourth Amendment protections anymore—the Court has opened the door to a host of abuses, the least of which will be racial profiling. Without fail, we will be revisiting this issue again, especially in light of the fact that Alabama, Georgia, Indiana, South Carolina and Utah have adopted similar laws.
Supreme Court Justice Harlan famously stated that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” However, S.B. 1070 and those like it have the very real potential to create both the perception and the reality that a new lower class of citizenship exists for one segment of citizens in the United States—those of Hispanic appearance. There can be no doubt that the effects of S.B. 1070 will primarily be felt by minorities. Citizenship and legal presence in the United States will be no protection against such racist policies. For now, in such an environment, the burden of proof will shift to compel those of Hispanic appearance to prove that their presence in the United States is legal. The consequence of such a policy of enforcement is obvious: it will “contribute to racial balkanization” and lead to second-class status for those American citizens whose skin color is anything other than white.
The concept of citizenship, as the Supreme Court recognized in its seminal Fourth Amendment case Miranda v. Arizona (1966), involves the enjoyment of “dignity and integrity.” At the very least, this means being “accorded a level of respect, regard, and autonomy in dealings with the police.” This goes to the crux of the problem: there is no room for dignity and integrity in a police state. Yet with every ruling being handed down right now, we’re being moved that much closer to such a state of affairs.
Frankly, when all is said and done, the mindset behind the Supreme Court’s ruling in Arizona v. United States is no different from that of Florence v. Burlington (which prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches), or Kentucky v. King (police were given greater leeway to break into homes or apartments without a warrant), or Brooks v. City of Seattle (police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution).
These seemingly unrelated cases perfectly encapsulate how much the snare enclosing us has tightened, how little recourse we really have—at least in the courts, and how truly bleak is the landscape of our freedoms. What these respective rulings reveal is that the governmental bureaucracy has stopped viewing us, the American people, as human beings who should be treated with worth and dignity. That was the purpose of the Bill of Rights.
The Fourth Amendment’s protection against unreasonable searches and seizures of our persons and effects was designed so that government agents would be forced to treat us with due respect. With this protection now gone, those who attempt to exercise their rights will often be forced to defend themselves against an increasingly inflexible and uncompromising government. Some will come under scrutiny for their political or religious views, others for the color of their skin, while still others may be targeted for merely being in the wrong place at the wrong time, or for trying to hold fast to some last shred of privacy.
In this way, the Court’s ruling in Arizona v. United States sounds a warning far greater than the singular matter of how states deal with illegal immigration. To those who can hear it, it says beware: the police state is almost upon you.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at www.amazon.com. He can be contacted at email@example.com. Information about The Rutherford Institute is available at www.rutherford.org
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