July 21, 2010


By Gary Endelman and Cyrus D. Mehta

In all the media frenzy over SB 1070, the extent to which Arizona has abridged the constitutional right of interstate travel has largely been overlooked. Indeed, when seeking to strike down SB 1070, the Justice Department almost exclusively based its objections on preemption by IRCA under the supremacy clause, devoting no attention to other constitutional infirmities. We write now to raise attention to another issue, which has largely been overlooked. Realizing full well that larger issues are at stake, it remains our view that infringement of the right to travel merits serious comment and stands as yet one more reason why Arizona’s initiative should trouble us all.

What about SB 1070 would discourage citizens and lawful resident aliens from travelling to Arizona? Consider the following scenarios and feel free to invent your own:

You are a naturalized American citizen born in Karachi, Pakistan. On a vacation to the Grand Canyon, you are stopped for speeding. Does the State Trooper then have “reasonable suspicion” to believe that you are “unlawfully present” in the United States?

You are a lawful permanent resident born in Honduras. Taking a vacation from your job with Kodak in Rochester, New York, you are trying to find the best directions to visit your old college roommate in Tempe. Not sure what to do, you make the mistake of asking local law enforcement at the next town. Suspicious, they demand to see your “green card” which you left in the motel safe so as not to lose it on the trip. Before you know it, the city police refuse to let you leave since there is no proof of your legal status and it will be the next day until federal authorities can verify it.

Your sister from Ciudad Juarez is getting married in Phoenix and you have to be there. Unfortunately, your car insurance has expired and, right before you leave, you file to renew it but there is not enough time to get a new insurance card before you have to drive from your home in Santa Fe, New Mexico. You get stuck at a random check point where all the drivers have to produce proof of insurance. Not having that, you show your Mexican birth certificate and most recent I-94 showing an expired H1B status for which an extension has been filed but not yet approved since your employer did not want to pay for premium processing. True, law enforcement officials in Arizona are not supposed to consider your “race, color, or national origin” but will they do that anyway under the rationale that this is permitted by the Arizona Constitution?

The semester is over and your whole dorm at Arizona State University has a keg party to celebrate. Things get louder than planned and the campus constabulary pays a not so friendly visit to see what is going on. Your friend from the University of Iowa has come to visit you and he remembers that back home in Cairo such situations do not always end happily. Will he want to come again next year?

Sure, these are made up concerns but are they that far removed from reality? In each of them, how hard is it to believe that the police officer or state trooper making the arrest or conducting the investigation would not claim probable cause to believe that you are removable from the United States? Who among us would be eager to travel to Arizona to find out? These questions are more than free-floating anxieties for they illustrate why SB 1070 strikes at one of the most basic constitutional freedoms, the liberty to travel from one state to another in a civilized and secure manner. Let’s find out what is at stake.

SB 1070 provides a safe harbor by stating that a person is presumed not to be an alien who is unlawfully present in the US if the person provides, inter alia, a valid Arizona driver license. What about a license or another form of identification issued by another state or other federal or state agency? The authors credit David Isaacson for pointing this out. Section 11-1051 states that another identification will only provide a safe harbor if the governmental entity “requires proof of legal presence in the United States before issuance, any valid United States Federal, State or Local government issued identification.” Not every state requires proof of “legal presence” before issuing a driver’s license. For instance, a perusal through New Mexico’s Department of Motor Vehicle’s website, http://www.mvd.newmexico.gov/Drivers/Licensing/How-to-get-a-New-Mexico-Driver-License.html, indicates that the state will accept a Matricular Consular Card, foreign birth certificate or valid foreign passport as proof of identification number and identity. If a US citizen with a driver’s license issued by New Mexico, who was originally born in India, is driving from Santa Fe to San Diego, her driver’s license will not help if an Arizona state trooper stops her if she was going at 58 mph instead of 55 mph and is not carrying other proof of being lawfully present, such as a US passport. If this person is prudent and aware of the dangers of SB 1070, she would rather avoid passing through Arizona and take an extremely circuitous route via Colorado, Utah, and Nevada in order to get to San Diego in California, her final destination.

Let’s read the Constitution for a bit. The Fourteenth Amendment reminds us that Arizona cannot “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.” The term “person” when used for this purpose includes both citizens and aliens here under color of law. Yick Wo v. Hopkins, 118 US 356 (1886). Any attempt by Arizona to classify travelers based on their where they come from is “inherently suspect and subject to close judicial scrutiny.” Graham v. Dept. of Pub. Welfare, 403 US 365, 372 (1971).Taken together, each of the individuals noted above belong to a “discrete and insular” minority, United States v. Carolene Products Co., 304 U.S. 144, 152-153 n.4 (1938) and we would do well to remember that “ the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” Takahasi v. Fish & Game Comm’n, 334 US 410, 420 (1948).All those who come here, not just citizens, can claim the Constitution as their own.

We take for granted our freedom to move from state to state but, precisely because not everyone can, the Constitution protects it. The right to mobility has repeatedly been recognized and upheld by the Supreme Court. See, e.g., Memorial Hospital v. Maricopa County, 415 US 250, 255 n.7 (1974); Oregon v. Mitchell, 480 US 112, 237(1970); Edwards v. California, 314 US 160(1961); Twining v. New Jersey, 211 US 78, 97 (1908). This is a right that is “firmly embedded in our jurisprudence, “ United States v. Guest, 383 US 745, 757 (1966), a freedom so central that it is “assertable against private interference as well as governmental action…a virtually unconditional personal right, guaranteed by the Constitution to us all.” Shapiro v. Thompson, 394 US 618, 643 (1969) ( Stewart, J, concurring ). Whoever they are, wherever they began, regardless of why they arrive, those who come to Arizona enjoy the “right to be treated as a welcome visitor rather than an unfriendly alien…”Saenz v. Roe, 526 US 489, 500-501 (1999). Whatever authority Arizona has, it is not so great as to decide who has the right to live or visit; indeed, the very exclusivity of SB 1070 runs directly counter to the fundamental spirit and essential character of the Fourteenth Amendment itself, an expression in Mr. Justice Cardozo’s ringing words of the “theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. G.A. F. Seelig, Inc., 294 US 511, 523 (1935)(Cardozo, J). The chilling effect that SB 1070 must have on the right of interstate travel can “produce nothing but discord and mutual irritation, “ as Chief Justice Taney so eloquently expressed in his celebrated dissent in Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1949).

Those who defend SB 1070 correctly note that the right of interstate travel has traditionally been regarded as a privilege of national citizenship. While the Supreme Court has not taken a step further to establish an explicit nexus between the right to travel and alienage, it is no less true that the Court has neither prohibited such a connection nor opined against it. “There are millions of aliens within the jurisdiction of the United States, “Mr. Justice Stevens reminds us in Matthews v. Diaz, 426 US 67, 77(1976), “ The Fifth Amendment, as well as the Fourteenth Amendment, protects everyone of these persons from deprivation of life, liberty, or property without due process of law…(citations omitted) Even one whose presence in this country is unlawful, involuntary or transitory is entitled to that constitutional protection.”

Critics will rightly note that the word ”travel” nowhere appears in the text of the Constitution itself. Some liberties are so intrinsic that they need not be mentioned by name. Before we had our present charter, Article IV of the Articles of Confederation, our first constitution, guaranteed that “ the people of each State of each State shall have free ingress and regress to and from any other State.” Professor Zechariah Chafee teaches us that, whatever its constitutional provenance, freedom to travel, no less than freedom of speech, press, religion or assembly, is a basic human right whose exercise comes under the full panoply of due process of law. Zechariah Chafee, Three Human Rights in the Constitution of 1787 at 185. http://www.constitution.org/cmt/zc/zc_3hrc.htm

Why oppose SB 1070? Mr. Justice Jackson gave us the answer in Edwards v. People of State of California, 314 US 160, 184 (1941) when he refused to allow California to bar poor people : indigence was not a contagion that must be quarantined. The Arizona legislature has already recognized why SB 1070 is so troubling to so many and, through its subsequent enactment of HB 2162, advised law enforcement authorities not to “consider race, color or national origin,” except to the extent allowed under the Arizona or US constitutions. Despite this, we know in our bones that the impermissible invocation of these invidious and immutable characteristics is the only way for this evil law to be enforced; its very existence is an irresistible invitation to government overreaching the protection against which is "implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 US 319, 325 (1937)(Cardozo, J).


  1. I am a third generation American. My ancestors settled Quebec in 1608 and then immigrated to the USA in 1901. I am well qualified for a job open in Arizona. I am not even applying because of this law. I have many international friends and I feel no one will even come visit me if I move to Arizona.

  2. I hope that every American, regardless of where he lives, will stop and examine his conscience about this and other related incidents. This Nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened. All of us ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated, but this is not the case.

    I know the proponents of this law say that the majority approves of this law, but the majority is not always right. Would women or non-whites have the vote if we listen to the majority of the day, would the non-whites have equal rights (and equal access to churches, housing, restaurants, hotels, retail stores, schools, colleges and yes water fountains) if we listen to the majority of the day? We all know the answer, a resounding, NO!

    As for the undocumented workers, as was attributed to Ronald Reagan “It’s the Economy, Stupid”. When the economy is good you say let’s all celebrate “Cinco de Mayo, my brothers” but when the economy is down “it’s all your fault, you damn immigrant”. This too will pass, the real problem is the narcos, arms and people smugglers and that’s what the focus should be on.

    Today we are committed to a worldwide struggle to promote and protect the rights of all who wish to be free. In a time of domestic crisis men of good will and generosity should be able to unite regardless of party or politics and do what is right, not what is just popular with the majority. Some men comprehend discrimination by never have experiencing it in their lives, but the majority will only understand after it happens to them.

  3. The U.S. Justice Department is filing a lawsuit challenging the constitutionality of Arizona's new law targeting illegal immigrants. This sets the stage for a clash between the federal government and Arizona over the SB1070 immigration crackdown.

    Do you think the feds have a valid case? Are you happy that republican governor of Arizona will be spending millions of dollars in taxpayer money to defend they law?

    Share your opinion on all or Arizona's political issues at http://www.azlegislation.com

  4. The people of Arizona also have a right to be protected from the presence of illegal aliens, people who we do not know the character of or intent. The fact is that foreigners who've crossed our borders illegally have committed crimes against our people, and would destroy our only defense against those who have ill will towards our citizens. Your argument would make the Constitution a suicide pact. Keep your high-minded noble platitudes and stuff them where the sun doesn't shine.

  5. “All Men are created equal”! The founders had it right, when attempting to form a perfect union and they also knew that they were not there yet but knew we one day would get there. Lincoln moved us forward as did JFK and LBJ. This Nation was founded by men of many nations and backgrounds. It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened.

    It is my contention that this AZ law is not constitutional and will fail when challenged (unless, of course, they keep adding more amendments), pretty funny for this so called perfect law, that many internet bloggers claim it was copied “Word for Word” from the Federal law, which I frankly do not believe, if it was then no amendments would have been made, right?, of course, keep those lies coming.

    Don’t you find it funny that no one ever voted for Brewer for Governor, she is trying to get elected on the back of undocumented workers, it’s all about politics, do not be fooled. In the last few months Busy Brewer has passed S.B. 1070, no permit conceal weapons law, the famous Birthers law, banning Ethnic studies law, (could she be behind the Mural in Prescott, Arizona) and if history is a lesson and if she can read, she should look up Arizona’s House Bill 2779 from two years ago (which failed when legally challenged) and the craziest one the boycott of Martin Luther King Day, not wanting another holiday, how crazy is that. I believe there is an undercurrent to their enactment of new laws, they real love following a distinct pattern. Poor Brewer, in an attempt to gain sympathy, in an interview she first said her father had died in Germany fighting the Nazi in World War II (which ended 1945) and we find out her father was never in Germany and died in California in 1955 (watch her play the victim card, again) and then she went to Washington and came back empty as always, poor dear.

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