A Caste Society or an Egalitarian Democracy: Using a Human Rights Lens to See the Bigger Picture in Arizona Case

Yesterday, the U.S. Supreme Court heard oral arguments regarding the federal government’s challenge to Arizona law SB 1070, an “attrition through enforcement” bill explicitly designed to reduce the number of undocumented immigrants in the state by making life so difficult and offensive to their dignity that they will “self-deport.” Other states, following Arizona’s lead, have passed similar legislation and added additional provisions aimed at “starving out” undocumented immigrants by making it difficult for them to conduct business, find housing, receive health care, or send their children to school.  The fact that sixteen states signed onto briefs in support of Arizona’s law leaves little question that more of this legislation is to come (and already underway in the form of referenda in Montana and Maryland) if the Supreme Court decides in favor of the Arizona law.

In the case before the Supreme Court, the federal government argues that the state law’s provisions are “preempted” by federal immigration law – in short, that immigration policy is the domain of the federal government and Arizona cannot pursue its own immigration policies if they conflict with federal policy, even under the guise of the “enforcement” of federal law.  (Other cases brought by non-governmental plaintiffs, such as the ACLU, are still pending in the lower courts and raise other important questions regarding racial profiling and discrimination, as well as violation of international human rights law). Thus, the nature of this particular case tends to reduce the question at issue to which level of government can make certain choices about how immigrants are treated in the United States– the federal government or the states?  Turning a human rights lens on the issue, however, allows us to see a bigger picture beyond the specific legal issues being argued before the Court.

At a fundamental level, this legislative campaign against undocumented immigrants is an affront to the set of values at the core of the concept of human rights, values that start with the principles of dignity, universality and equity.  The preamble of the Universal Declaration of Human Rights opens by stating that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”  Allowing (real or suspected) immigration status to undermine this principle presents the specter of a society characterized by fear, distrust, and disrespect for human dignity.

Human rights law was developed to embody and protect these values.  Therefore it is not surprising that many in the legal community, including U.N. human rights experts, have noted that the discriminatory nature of the Arizona law violates the United States’ international human rights obligations.  Measures passed elsewhere limiting undocumented immigrants’ access to housing, health care, and education also run afoul of important economic and social rights protected by international human rights law. The fact that these measures violate human rights – whether or not that fact is addressed by the courts in current or subsequent litigation – reminds us that the ultimate question we face is not which level of government should be able to do this, but should any level of our government do this.

From a human rights perspective, the answer is clearly no. Thirty years ago, when the Supreme Court struck down a similar state measure – a Texas law denying undocumented immigrant children a public education – the Court rejected the argument that immigrants’ undocumented status could exclude them from the term ‘person’ as it is used in the Fourteenth Amendment, stating that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.” Plyler v. Doe, 457 U.S. 202, 210 (1982). In that case, the Justices recoiled from the danger of creating a caste society through a refusal to educate undocumented children.

Similarly, what is really at stake in the Arizona case is not whether immigration policy is or should be a federal or state matter. Rather, it is nothing less dramatic than whether we choose to acknowledge or deny our shared humanity and what core values we attach to that humanity.  And, regardless of what the Supreme Court decides, we will have to address this question as a nation in the aftermath – whether that is subsequent state-level legislation and litigation or the shaping of federal immigration policy.  The set of core principles at the heart of human rights offers a framework within which we can approach these questions in ways that will reflect, rather than undermine, a commitment to the dignity and equality of all human beings.