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


PearceUpdate: 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

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.


  1. SHERIFF JOE WHERE ARE YOU ? Litchfield Park

    I need your help please CALL sheriff joe Arpaio: 24 Hour Illegal Enforcement Tip Hotline 602-876-4154 OR (602) 876-1801 RE: The Wigwam Golf Resort & spa 300 Wigwam Boulevard Litchfield Park, Arizona 85340 It is alledged that they are hiring illegals with bogus or stolen SSI numbers. Alledgedly the names of the persons giving our jobs away to illegals are the following. Mrs. martina and a Mrs. Barbara in Human Resourses at the wigwam golf resort & spa .They alledgedly are the ones that run E-verify checks on all new hires and tell us that they have lived up to the letter and spirit of the law. When they very well should know that most illegals working there are alledgedly working with some one else good social security number and that is why they can pass an E verify check with flying colors it may very well be that the wigwam resort & spa May not be aware of what their Human Resourses personal are alledgedly up to . I do not know if this true but if it is they are breaking our immigration laws. GOD BLESS AMERICA This jobs can be done by our hard working Legal people. Here is a link Thank you very much Please do not flag my ad. GOD BLESS AMERICA

  2. Peirce is right. Life is a 2 sided sword, don’t you think? Most immigrants come here illegal. The word ‘W.O.P.’ means ‘With Out Papers’. That’s what they stamped on the paperwork of illegal Itialian immigrants on Ellis Island back @ the turn of the century. Chinese, Irish, everyone dealt with the fear America has. BUT these immigrants loved America, learned English, paid taxes. They gave as well as took. They had just as little as the present-day Mexicans. This huge rush of Illegal Mexicans do NOT respect our ways, expect us to change our language, do not embrace our cultures. A lot of taking-not much giving. I don’t want immigrants to not come to America. That’s what America is – a melting pot. But do it right – legally.

  3. Ah, the white guilt flows freely. You are all so good with it…until your own kids are going hungry and you can’t a job. What’s next, apologizing for slavery that was outlawed 141 years ago!?!

  4. The xenophobia that Pearse exercises has been used before on every immigrant that has come to the U.S. Pearse disregards the law. He probably disregarded the law even as a sheriff. He appeals to all ignorant racist. These illigal immigrants work pay taxes even start businesses. Pearse is donig all this for his own grandiose ambitions.

  5. As a Tucson Democrat, I wish to further your cause of limiting the rights of the illegal aliens as stated in the AZ. Daily Star on Sunday, Dec. 30. May I be of help to get this bill passed? Please r.s.v.p. to Thank you and Godspeed.
    Ellen LaCroix

  6. I think the last thing we need is more bigotry in our legislature. Face it, this isn’t just about an immigration issue for Pearce. He is a bigot, racist (remember that whole anti-Semitic email he sent out and “supposedly” didn’t know it had anti-Semitic remarks?? yeah right, nice try), Bible thumper and of course he would be disgusted by anyone or anything who isn’t a pure blooded American with hard core Christian values.

    What, do illegal immigrants not need to eat?? Do they not pump money into OUR OWN economy every time they buy an effing soda? He can’t logically sit there and really believe all they are doing is sucking money from the system and sending it to Mexico… and honestly, I think we all know a few American citizens who pop out babies by the bunches to stay on welfare. What, are we to kick them out of the country as well for sucking up resources??

    I’d like to see Pearce wait for day labor on the side of the road for 12 hours a day and see if he thinks illegal immigrants really are getting a free ride and living the life o’ plenty. Mind you Joe Schmo American pretending to be a war vet is sitting a mile down the road with a sign just begging for money. At least the illegal immigrants want to work to make their way…

    I’m JUST saying.

  7. Russell Pearce is an idiot. Try living in the life of a hungry “illegal” child for one day.

    The United States is the greatest nation in the free world. Why can’t the govt figure out how do this immigration thing correctly?

    It’s the proverbial shooting yourself in the foot. Just watch what happens. The powers-that-be have made this situation unnecessarily ugly!!!!

  8. State Rep. Russell Pearce should run for president of the United States because he is not afraid to take names and kick ass. He sure has my vote.

  9. Ironic how the people who write as if they are not native English speakers have a predictable anti-immigrant viewpoint.

    In any case, the premise that immigrants are “motivated by the lack of the enforcement of laws” to come to this country is simply false. The vast majority of immigrants from Mexico and Latin America come here to be able to provide for themselves and their families. If they could make a living in their own country, they would prefer to do that.

    One must be deluded to think that people are spending thousands of dollars and risking death to travel illegally to this country just because our immigration laws are too lax. People come here, despite hardships and the law, because it is in their self-interest to do so. And nothing we can do to enforce the immigration laws will change that calculus. As long as their is a reasonable chance of making it here – and border control can never be effective enough to prevent that without shooting people on sight – they will continue to come as long as they haven’t any opportunity in their own countries.

  10. reality, these amendments were drafted when this country was young ,certenly amendments were drafted to protect imigrants from religious prosicution , asilum from radical government,so on & so on can we agree on this .OK .What we have is millions of people being motivated by the lack of the enforcement of laws and special intrest groups running interferance on how they should be applyed .wile they line there pockets .We have law enforcement bending more laws for millions of people that will not obey other laws .these amendment were drafted to help smaller groups of people not for millions of people that perfer not to obey laws .Also one of these millions of nice people that needs help is running around with my 8yr.old childs duplicated social security card .I guess this person feels my childs future is of no importance.

  11. illegal imigrant is no better than any one else come to this country legal like those that are sworn in every year instead of bkreaking laws with false documents and pushing their way by force.they should do what most countries do for change go back to where they come from and have a revolution. because no matter what it takes they have to go were are tired of the lie’s buy these groups that represent them and calling americans racist what do they call the mexican gov.? sooner or later it will come to a head maybe another revolution? lets put them all on a large ship and find them some place to live on some island but they have to GO GO GO

  12. I think that the illegal immigrants that have been here for more than 4 years should become citizens. But upon becoming citizens they should be eligible for the draft. After all, all citizens are required to serve their country.

  13. So, it would be interesting to know why Mr. Pearce seems to believe that illegal immigrants are not entitled to first, fourth or sixth amendment rights. Obviously, he has no specific legal rationale concerning these amendments. Perhaps he beleives that illegal immigrants are not entitled to any constitutional rights whatsoever. It would be intersting to know whether he believes that the 13th amendment applies to illegal immigrants, and if he does, why the 13th and not the first, fourth or sixth.

  14. Mike;

    I have taken The Cardinals to dinner and The Bischops from the Tucson Catholic Church. We have a very deep trust and respect for one another and our ideas, even though Iam a Luthern and was an Alter boy, and active in my Church.

    We talk about issues relevent to the day, one was “All Aliens” not any single group and what rights the State gives them in the World and what rights The Church gives them.

    Quite the contrary the question was brought up by The Cardinal not myself!

    To say Iam the only one who sets up “Strawmen,” shows a lack of depth of understanding outside of the “scab” that has formed over the immigration issues in England, Turkey,Australia,Canada,France,and the United States more recently, is to be uninformed.

  15. iam not a corporatist whom supports the use of illegalls to gain me big profits, at the expense of the american worker.
    i have always paid a wage that is above the minimum wage and never pandered to pay people under the table so i could by another cadillac.

  16. jal is quite correct today being easter people of all faiths are gathering for prayer.
    this brought me to the question of “what if” the immigrants voting patterns are known to favor life over abortion issues. if this immigrant population was to implode roe v wade would everyone still have immigrant rights on there minds?

    does the illegal mob still rule?

  17. as for dual citizenship of a mexican immigrant voting both in mexico and the unites states, changing voting patterns of the united states as seen in the 2004 election.

    the pima county democratic party and the pima county recorder had set up voter resistration tables for the immigrants to sign up and resister to vote, is this practice that changes voting patterns acceptable to everyone, and as it has changed california to the extent it could seceed from the united states and become a mexican territory. is this what the founding fathers invisioned the united states seceeding states to foriegn governments as the send there people to change voting patterns?
    in other words squatters rights?

  18. Dwight, if you can’t engage in an exchange of views without setting up gross and distorted strawmen such as this, you really are really wasting everyone’s time.

    Nobody, except you, has suggested that aliens have rights which trump all our laws. Why is it that conservatives always think limited government is a good idea until it prevents them from codifying their hate of some minority group into law. Then, they become raging statists for whom the power of the state is absolute and above the claims of morality, common decency, and common sense?

  19. 1) I don’t think that rights adhere to a person at any particular time or place. Rather rights inhere in all people as a consequence of the principle of limited government. Even soveriegn governments must bow before the prior moral claims of basic human rights.

    2) Those who chose to burn a foriegn government’s flag are engaging in symbolic speech that is fully protected by the First Amendment. Such protection shields them from certain penalties from their government, but it doesn’t shield them from the anger of those they intend to offend. I imagine that the violence and controversy resulting from the specific incident in Tucson was neither unexpected, nor unwanted.

    3) The likelihood of ‘insurenction’ against the government is no greater now than it has been during the lifetime of the fascist/racist right in this country. Terrorist incidents in the form of hate crimes targeted at immigrants, especially Latinos, or even at the government, such as the Murrah building bombing, are possible, but the most radical and violent racists would never constitute a large enough group to qualify as an insurrection or rebellion.

    The same people who support and provide the membership of the Klu Klux Klan, the Christian identity movement, the Aryan Brotherhood, and white supremecism groups in general, now form the anti-immigrant wing of the GOP, including the Minutemen. That is not to say there aren’t useful fools in those organizations providing a patina of legitimacy to racist hatred. There are assuredly supporters of an anti-immigrant agenda who are not racists, just misguided nationalists, but they are really irrelevant except as they provide legitimacy to the eliminationist facists who are the core of the movement.

  20. Mike do you think that the “Situation” that exists today could lead to an “insurrection” by American Citizens against its government outside of the ballot booth?

    If so the XIV th Amendment addesses Insurrection and Rebellion and where we as a Nation could be headed if Congress does not do its job!

  21. Mike , I need some insight into The Burning of a Mexican Flag. Put aside the terrible message it sends , but does the person burning the Mexican Flag have rights?

    Example; Roy Warden is accused of Burning The Mexican Flag as a protest to the Mexican Revolution. He has stated he wants the ACLU to defend his rights and being arrested for doing so, at the illegall immigration rally on Monday that had 16,000 in attendance.

    Does an American Citizen have rights in The United States to protest another Country by burning its flag with-out fear of being arrested? Short of causing criminal damage to a shuffle board court and criminal assault to a channel 4 camera man who hit Roy Warden?

    This is a confusing situation because the protesters that threw water bottles at Roy Warden were arrested on the Property of my Funeral Home by 60 Police Officers, as pictured in The Arizona Daily Star.

    Do Police have the right to arrest protesters on private property irregardless of what happened on monday?

    There is a Legal Fued brewing between Warden and Barbara La Wall and La Wall is jumping all over the place , as The police have been asked to appologize to the people whom they arrested throwing water bottles at Roy Warden.

    It sounds silly but this is a very serious matter that could turn into a confrontation no one wants.

    Some legal clarity could help.

  22. It is really a very concise document, the Constitution.

    About 4 pages does it, including the Amendments.

    It is mind boggling how many folks in authority, or striving to be in authority, exhibit an embarrasing ignorance of this basic law of the land.

    Often providing their own spin or concept of what it should say.

    It really should be required reading, and help in understanding the tricky parts should be provided….

    Passed by Congress June 13, 1866. Ratified July 9, 1868.

    Section 1.
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

  23. I agree; what I was trying to hear you say is that Cubans whom come to the United States and “Touch their Toe on UNited States SAND” at the bottom of the Gulf have made it and are guarenteed rights in Florida. Senator Mel Martinez of Florida a Cuban migrant tried to pass a bill that addressed this issue and was defeated as of now, but could come back into play.

    As someone whom is not a lawyer at what point in the joiurney does the illegal gain rights under our laws?

  24. Dwight, I never said that illegal immigrants have the same rights as U.S. citizens. In fact, I carefully outlined some of the specific ways in which the constitutional rights of illegal immigrants differ from those of a citizen. However, our constitution protects many basic rights of every human being within the territories of the United States, regardless of their immigration status. To make a blanket statement, as Pearce did, that some people have no protections under our constitution is wrong, ignorant, and coming from a political leader, dangerous and irresponsible.

  25. Mike at what point in time in the journey of an illegal from the time of the initial thought of inception to the act of leaving the sovern territory of Mexico and entering the sovern territory of the United States does this person inherit the Constitutional Rights of a United States Citizen?

  26. The Mexican Government has called on May 1st (UNITED STATES LAW DAY) to be “NOTHING GRINGO!” Don’t buy anything made in the United States in Mexico on May 1st.

    I too advocate “NOTHING MEXICAN!” including illegall’s ignor them, don’t hire them don’t have them cut your grass or clean your house.

    All General Motors Trucks made in Mexico is on that list as well as Ford Motor Company Truck Fames.

    Lets get those plants to re-open back up in the United States as they are being planned to be shut down at the Ford Norfolk Ford F-150 Truck plant that moved to Mexico!

    Its time to follow “An Eye for and Eye and a Tooth for a Tooth,” as one step at a time and one day at a time will bring out the truth in what Mexico plans for The Citizens of The united States whom are sitting at home watching there television sets as Mexican Nationals walk our streets in Los Angels and Phoenix and New York and Washibgton waving The Mexican Governments Flag of Vincente Fox!

  27. I do not support statements of any elected official that are his own, but I hope his statements are a reflection of his constituents; if not he should be impeached by those constituents.

    Personal attacks on every person whom disagrees with this subject that will change The United States forever; pretaining to the plight of every single Mexican National now in Mexico and those in The United States Illegally;(not legally)should be put to a vote of The People of The united States.


  28. Irregardless of the he said she said about the plight of 45 million people living in Mexico, not a “Global Population whom wants to move to the United States, but only Mexicans” who want to move north of their borders to a foriegn country and enjoy its benifits, sending back money to support “The Mexican Economy?” The country they are wishing to support them is a “Living Quick Sand of Laws,” that are disregarding the Citizens of The United States of which the founding fathers wrote its Constution.

    I then as The American Citizen supporting The Mexican Economy have “Rights in Mexico” and demand to be granted every single right afforded The Mexican Nationals whom are in The United States.

    Even The ACLU will become involved as “Society” as we know it is turned on its head. This has nothing to do with any Political Party but as Sam Houston said; “Never Forget The Alamo!”

    I don’t see anywhere that The United States Constitution is a “GLOBAL DOCUMENT.”

    If this debate involved a “GLOBAL POPULATION” whom have rights over the Citizens of The United States, I want out of here! I will not pay taxes to support every Nation of The Worlds population that thinks its people would be better off living inside the Borders Of The United States and takes no responsibility for paying any of the “Transfer Costs?”

    I would like to see everyone advocating right now for open borders and no laws enforced on criminals from other countries that break or Laws to call on you (1) one year from today, and hold you to your statements!