This post comes from the Legal Insurrection blog. For an example of the opposite viewpoint, see Archbishop Timothy Dolan's article here.
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Just Say It - "All Immigration Laws are Racist"
By Prof. William Jacobson
There is a fundamental disconnect in the arguments being mounted against the Arizona immigration law. What many of the critics want to say, but do not, is that they view all immigration laws as inherently racist because most illegal immigrants are non-white.
There are some legitimate civil liberties concerns regarding the standard by which police can require someone to produce identification or other information. These concerns are not unique to the Arizona immigration law. Much of the history of our criminal laws is an attempt by the courts to set forth standards for police conduct regarding searches and seizures, and questioning of suspects.
But a point I have made before is that a law which may end up being tossed by the courts on civil liberties grounds does not make the law racist. Issues such as random DWI checkpoints have posed serious legal issues for reasons completely unrelated to race.
That a racially neutral law may be enforced in a racially discriminatory manner also does not make the law, or supporters of the law, racist. Our traffic laws are a prime example.
Police often are accused of singling out minorities for traffic stops based on race, but that does not mean we stop enforcing traffic laws altogether, or accuse proponents of speed limits and stop signs of being racist. Rather, we implement policies which prohibit racial profiling and do our best to enforce such policies.
I realize that this may be too nuanced for some. But the distinction is important because of all the hyperventilated charges that Arizona now is a Nazi, Communist and Apartheid state (quite a combination).
At its heart, the accusations of racism stem from the view which many critics of the Arizona law share, but will not state: All our immigration laws are racist because the vast majority of illegal immigrants are non-white, and of those, a majority are Mexican. Immigration laws, therefore, must be racist, and those who seek enforcement of the laws are racists.
This is the argument which is not made, because it inevitably leads to an open border policy which is a non-starter politically. Open borders are advocated by many groups, but not explicitly by any major political party or politician.
Hence the tension. You will hear charges of racism no matter what is done to enforce the immigration laws.
If the federal government took steps to fully control the Mexican border and stop people before they entered the U.S. , so that Arizona police did not need to ask for identification, you still would hear charges of racism.
I do not believe that most Americans share the view that controlling the border -- whether along the Mexican border or at JFK airport or at crossings from Canada -- is inherently racist; so too, it is not racist to enforce the immigration laws against people who violate the border controls.
Rather, the issue is sovereignty. Is the United States, like every other country in the world, entitled to control its borders, to determine who can enter and under what terms, and to enforce the laws which protect this sovereignty.
That is the debate we need to have, because the debate over the Arizona immigration law is just a sideshow in the larger national debate over sovereignty.
