As mentioned in my earlier post, Arizona has enacted a new law, the SB1070, which requires foreigners but not US citizens to always carry an ID card on them as failure to do so constitutes a crime, and which allows any law enforcement officer during a legitimate stop of a person to check that person's immigration status if there is a "reasonable suspicion" that he or she is in the country illegally. The law has created an intense debate and several lawsuits. One of the main issues heatedly debated by the American public opinion has been the question of what constitutes a "reasonable suspicion", and how this cannot not result in racial profiling and in hassles especially for foreign-looking Americans. In that sense the SB1070 has been accused of being a racist law. The law - opponents claim - will deny (irregular) immigrants the "equal protection of the law" as mandated by the US constitution and make communities unsafer rather than safer. Regardless of the merits that this criticism might have, unfortunately no one seems to elaborate it enough or to bring the charge of racism or hostility towards foreigners (which seems to be a more appropriate term) against the very idea that underlies the law, namely that only a certain part of the population has to carry an ID card on them at all times lest to commit a crime. No one of the public opinion seems to question the basic fact that only foreigners be imposed such a burden. (Actually I came across one interesting and read worthy exception even though the author's reasons might be more connected to the effectiveness and racial profiling arguments, which I explored in my earlier post.) Could the reason for this be that SB1070 in many parts just repeats federal law? Indeed, many parts that SB1070 is criticized for are not that different at the federal level. So maybe rather than criticizing SB1070 it would be better to first examine what the federal law says before accusing Arizona of racism.
In the US, US citizens are not required to have or carry an ID card, and a national ID card system does not even exist. In the meantime, for foreigners, the Immigration and Nationality Act Section 264 (INA §264), as consolidated by 8 USC 1304 (e) and which goes back to the Alien Registration Act of 1940, (for an explanation, see here), foresees that:
"Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."
Hence, be it according to federal law, be it according to the Arizonan law, the situation that is of our interest here is the same: Whereas US citizens under both legislations do not have the duty to have, let alone carry along an ID card, aliens do not only need to have an ID card, but they have to have it in their own personal possession at all times. More importantly, failure to do so does not just constitute a civil infraction sanctioned by some administrative fine, such as crossing a red light or speeding, but constitutes a misdemeanor, i.e. a crime. As such, I assume, it will result in an entry in the alien's criminal record. This seems like a huge imbalance of rights in favor of US citizens and like an obviously unequal treatment. I assume few people would disagree. Yet, can this sort of discrimination really be called racism?
People all over the world seem to accept the notion that foreigners be granted less rights than citizens in certain aspects. In that sense, few people would think that restricting voting rights to citizens constitutes racism. Yet, the reason for this is because the rights in question are political rights which by their very definition are reserved to people belonging to a certain group. But the problem with the Arizonan law and the US federal law that the former replicates is that none of them is about political rights. They are about rights that in American belief should safeguard an individual's life from undue interference from the government, and ensure that one be free to live his or her life. They are about privacy rights. This is also something that the German Minister of Interior Thomas de Maiziere explained to the European public when defending the US commitment to privacy protections. He was cited as explaining that:
"While Germans are perfectly comfortable with showing their ID cards with all personal data to a police officer, [...] the very idea of such a document is outrageous to Americans and Britons." (emphasis added)
And the engrained link between privacy rights and the opposition to ID cards was also confirmed by the US ambassador to the EU William Kennard when he explained in an interview,
"America is seen by some as not caring about privacy as much as those in Europe. But this portrayal is a caricature [..] When I arrived in Belgium a few months ago I was told that I had to have an identity card and that I would have to carry it with me everywhere. This is something that would be unthinkable in the US." (see page 7; emphasis added)
Yet, it is not unthinkable – not if you are non-American. And this is where the charge of racism comes in: Privacy rights and fundamental freedoms are conceived of as human rights and have their roots in the Enlightenment tradition that continues to shape both Europe and the US. As such, there is no legitimate distinction that can be made between citizens and non-citizens: If Americans don't want to be obliged to carry along an ID card as this might expose them to governmental tyranny and infringe on their fundamental freedom, then why do their representatives impose this on others? This is also in contradiction to the "Golden Rule", widely accepted by all major civilization as a compass to what can be considered moral, and which in its negative formulation states: "Do not do to others as you would not have them do to you." In that sense, it is precisely because of the very meaning Americans themselves attach to ID cards, whose rejection is perceived as a guarantee of their fundamental freedoms, that the Arizonan and the US legislation can be accused of racism: Why should foreigners not be allowed to lead a life free from undue governmental interference? Why is their private and undisturbed life not worthy of protection? Civil and privacy rights might be conceived of differently in different places, but they can't differ on the basis of what type of human being you are. Yet, this is what the current legal framework in the US – be it SB1070 or the INA §264 – does, and why it appears to be racist: it constitutes an illegitimate discrimination insofar as it restricts certain human rights to a certain category of human beings only. That such a discrimination has no foundation was also recently recognized by U.S. District Judge Susan Bolton when she blocked parts of the SB1070 before they could enter into effect, when she judged that the law "burdens lawfully-present aliens because their liberty will be restricted while their status is checked."
So let's be clear, defenders of Arizona are right when they say that for the most part, SB1070 just repeats federal law and that the harsh way in which Arizona is currently criticized is unjust. I agree, and I want to defend Arizona: its legislation might be considered racist, but we shouldn't apply double-standards. Everyone who accuses Arizona's legislation of racism, should also pick a bone with the related US legislation. It is a burden to have to carry an ID card on you at all times under the threat of criminal punishment, and it is not clear why this burden should be imposed only on a certain part of the population (especially since only an indiscriminate application of that law to everyone would make the law an effective tool for national security and in the fight against illegal immigration as seen in my earlier post).
Maybe some of you can find some reasons or don't think it is a burden to carry an ID card around, but in any case some people have the choice, while others don't. It is a pity that in the proud land of the free, some people are simply freer than others.
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