Arizona State Rep. Russell Pearce Says Immigrants “Have No Constitutional Rights”

Update: Pearce’s comments and this post were picked up by reporter/author Dave Neiwert at his blog Orcinus, at which he writes about the racist/fascist element of the Right Wing in America.

Arizona State
Representative Russell Pearce (R-18), Chairman of the Appropriations Committee, and one of the most influential members of the Arizona House told Capital Media that he understood the motives of undocumented workers who come here to work.

He said, “I’d come, too, if you could give me a job and free everything.” He almost seems sympathic, doesn’t he?

About the recent protests here in Arizona on immigration policy, Pearce said, “They’re
illegal and they have no right to be marching down our streets. They
have no constitutional rights. They don’t have First-, Fourth-, Sixth
amendment rights. They’re here illegally and they chose to be here
illegally.”

This is a very irresponsible and inflamatory thing for a public official in Pearce’s position to say. If Pearce were to be taken at his word, the result would be that every undocumented immigrant would be legally equivalent to Bush’s terrorist suspects: in a legal black hole where no legal process could touch them, and not even basic human rights are to be afforded them. I have to wonder: is that what Pearce really wants?

Now, Pearce is certainly a political opportunist, or a racist, or both, and he has good cause to hold a personal grudge against illegal aliens, but he also has served as a judge pro-tem in Justice Court and been a deputy sheriff for most of his career, so he really has no excuse to be so frighteningly ignorant of the law. He may wish that illegal aliens had no rights, and he may be working to remove as many of them as he can (Pearce has introduced more anti-alien bills this session than any other lawmaker), but he’s dead wrong that they haven’t got any.

To be charitable, I will assume that Pearce only means what he says: illegal aliens haven’t any rights under Amendments I, IV, and VI. Even so, Pearce is demonstrably wrong according to the Supreme Court, and I’m inclined to take their word over that of a local-yokel jingo like Pearce.

The constitutional rights of due process that are most immediately relevant to immigration status are by far the most import rights to an undocumented alien. Since immigrants don’t have
the right to enter the U.S., those who are not here legally are subject
to deportation. The Immigration and Naturalization Service (INS) has
the authority to question "any person believed to be an alien as to his
right to be in the United States." But in a 1903 case called Yamataya
v. Fisher, the U.S. Supreme Court ruled that the INS could not deport
someone without a hearing that meets constitutional due process
standards. Since then, procedural rights for undocumented immigrants
have evolved so that today, in spite of Congress’ attempts to curtail
these rights, most people facing deportation are entitled to:

• a hearing before an immigration judge and review, in most cases, by a federal court; 
• representation by a lawyer (but not at government expense); 
• reasonable notice of charges, and of a hearing’s time and place; 
• a reasonable opportunity to examine the evidence and the government’s witnesses; 
• competent interpretation for non-English speaking immigrants, and 
• clear and convincing proof that the government’s grounds for deportation are valid.

Clearly, even illegal immigration have a constitutional claim to be treated with fairness and due process. This simple fact makes Pearce’s general statement that "they have no constitutional rights," not only ignorant, but clearly in the vein of eliminationist rhetoric.

Pearce asserts that illegal immigrants have no First Amendment rights. This, too, is perhaps wishful thinking by Pearce. It is true that the courts have held that Congress may exclude aliens from entry to the United States based on their political views, and that illegal aliens may not raise First Amendment objections to deportation proceedings, but even though their right to free speech is limited by such holdings, they are not bereft of a right to speech, let alone the right to worship freely, publish, assemble, and petition that are also protected by the First Amendment.

The courts have held that the right of illegal aliens to participate in the political life of this country is limited, but these restrictions are focused on the right to vote and to hold offices of that implicate  responsibilities that go to the heart of representative government. Any attempt to restrict or ban speech by illegal aliens based upon their immigration status would run afoul of the equal protection doctrine under the 14th Amendment and would almost certainly recieve ‘strict scrutiny’ by the courts, which is generally a death knell for legislation.

Pearce asserts that illegal aliens have no rights under the Fourth Amendement. Anyone who watches "Law And Order" with any frequency is, no doubt, familiar with it’s broad outlines. Were illegal aliens devoid of rights under this Amendment, they would subject to arbitrary searches and arrests, and without many of legal rights provided by our criminal justice system. Such is not the case. Our criminal justice system is agnostic as to a person’s immigration status. We afford those accused of crimes the same rights, and require the same police proceedures, regardless of the accused’s immigration status.

Finally, Pearce asserts that illegal aliens have no rights under the Sixth Amendment. Again, were this the case, the criminal justice system would be a drum head court for illegal immigrants accused of crimes. Illegal aliens accused of crimes have the same right to a jury trial, and the same notification and process rights of any accused citizen. The only difference is that illegal aliens haven’t the right to a court-appointed and publicly-funded attorney at immigration hearings, though they have the right to be represented by an attorney at their own expense. Immigration hearings are not properly criminal procedures, however, so this limitation does not detract from any Sixth Amendement rights.

So, Pearce is as wrong as can be. His assertion is wrong, incoherent, and irresponsible. For a man who is a former peace officer and judge, his statement is contemptable and inexcusable. Pearce purports to be a constitutional officer of Arizona, sworn to uphold and defend its constitution and the Constitution of the United States. Shouldn’t he, at minimum, know what the Constitution means, and not be making erroneous, eliminationist, and xenophobic claims about the legal status of those he doesn’t like?

Contrast Pearce’s mean spirited conception of the American way with the humanity and widom of the words of Alexander Bickel, "I find it gratifying that we live under a Constitution to which the concept of citizenship matters very little, that prescribes decencies and wise modalities of government quite without regard to the concept of citizenship."

Politicians like Pearce are disgracing Arizona, and America. He ought to be ashamed. He ought to retract his statement and apologize for his alarming remarks.

I’m not holding my breath, though.