Reflections on the Birther Movement

I myself tend to hear about “birther” grumblings primarily from bumper stickers and talk radio rants. If the grumblings were limited to those two contexts, perhaps this non-issue wouldn’t be so troubling to me.

However, a few people have taken the time and incurred the expense to file lawsuits challenging President Obama’s “natural born” citizenship qualifications to hold our nation’s highest office. The lawsuits have not gone anywhere and have been held by the courts to be baseless. Unfortunately, these results probably fuel paranoid conspiracy theories and defensiveness that the plaintiffs did not get a fair consideration of their gripes.

Astonishingly, earlier this year an army officer refused to deploy to Afghanistan based on birther claims. He did so with the full knowledge that the refusal would jeopardize his long military career. In that it was President Obama’s predecessor who initiated the war in Afghanistan, I’m particularly baffled by this gentleman’s refusal to deploy. The links below provide background on his refusal.



http://www.upi.com/Top_News/US/2010/04/13/Court-martial-for-birther-Army-officer/UPI-33691271210902/

http://www.nydailynews.com/news/national/2010/04/14/2010-04-14_birther_lt_col_terry_lakin_to_be_courtmartialed_for_refusing_order_to_deploy_to_.html

http://video.search.yahoo.com/video/play?p=terry+lakin&ei=UTF-8&fr=slv8-ober&fr2=tab-web&vid=0001908498926

By way of contrast, the following are a few links on the other side of this controversy:

http://www.snopes.com/politics/obama/birthcertificate.asp

http://fightthesmears.com/articles/5/birthcertificate

http://www.factcheck.org/elections-2008/born_in_the_usa.html

To me, the whole birther movement is troubling for a number of reasons. First, I find it tragic that some are so desperate to overturn the will of their fellow citizens that they are grasping at straws to discredit the collective decision of American voters. It seems to me that desperation is emblematic of deep feelings of alienation from the mainstream, which is disturbing in itself.

Moreover, I find it particularly troubling that these birther rants are coming at this particular time in history. Barack Obama is our nation’s first president whose ancestry is not entirely European. As far as I am aware, he is also the first sitting president to have his eligibility as a “natural born” citizen questioned seriously (despite the contra evidence of his qualifications). I myself am not convinced these facts are unrelated.

If both of Barack Obama’s parents were of European ancestry, I doubt the birther movement would have come into being. In this day and age, most people are ashamed to admit to lingering racist resentments. Even those, who are not ashamed, know that such views are not acceptable within the mainstream of modern American values, and their complaints will appeal to only a small fringe within our country if they are explicitly racist. As a result, I believe the “birther” attacks are a proxy for explicitly attacking the propriety of an African American sitting in the Oval Office. I explained in my prior post that the legal concerns over Senator McCain’s “natural born” citizenship were actually much more substantial than President Obama’s. Nonetheless, I am confident that if Senator McCain had won the presidential election in November 2008, the folks in the current birther movement would not be declaring his presidency illegitimate.

Ironically, the birther attacks themselves are a form of xenophobic bigotry, if not racism. As noted in my prior post, even before Barack Obama landed on the national stage, the “natural born” citizenship requirement was panned as racist because most recent immigrants to our country come from Latin America and Asia. Thus, the “natural born” citizenship requirement today applies largely to exclude Latinos and Asian Americans from being elected to the presidency. It is interesting that the birther attacks come at the same time in our nation’s history as the scapegoating of illegal immigrants in our political sphere. My own sense is that the motivations of both are related.

Exodus 23:1-2 (New King James Version)

You shall not circulate a false report. Do not put your hand with the wicked to be an unrighteous witness. You shall not follow a crowd to do evil; nor shall you testify in a dispute so as to turn aside after many to pervert justice.

The Constitutional Requirement that a President be a “Natural Born” Citizen

This summer I have been fortunate to get to do some traveling. Our family has put a lot of miles on our car as we trekked across several states in the Southwest. We have had fun spending time together as we soak up a lot of the beautiful scenery in this amazing country of ours. Being in the car a lot more than usual, I have had the opportunity to read a lot more bumper stickers than I typically do. Some are more interesting than others. We weren’t traveling in New York, Vermont or Hawaii, so it was not uncommon to see some bumper stickers expressing hostility towards President Obama. One that comes to mind stated: “God and Obama have one thing in common: no birth certificate.”

I have to admit when I see things like that or hear equivalent comments on talk radio, I tend to roll my eyes and think, “Really?!!? Is that the best use of the finite time you have on this Earth?” Personally, I just cannot believe some folks are still talking about that non-issue.

Earlier this year, an article of mine appeared in the Chicana/o-Latina/o Law Review, which is published by UCLA. The article involved the constitutional requirement that a president be a “natural born” citizen. The article is titled “Empowering Our Children to Dream Without Limitations: A Call to Revisit the ‘Natural Born Citizen’ Requirement in the Obama Era.” Despite the title, the article actually had very little to do with Barack Obama, but grew out of my love for children and my interest in the effects of various laws on their well-being. This particular article was inspired by certain personal experiences I have had as a mom, an aunt, and a former grade school teacher. If you are interested, you can access the entire paper (or just an abstract) at the site below:
http://ssrn.com/author=703901

The topic of the paper is very different from my typical scholarship. As a result, I learned a lot about the “natural born” citizen requirement in the course of doing the research for this paper. For example, the “natural born” requirement has been panned by many constitutional law experts and lay people for a very long time. The requirement has been criticized as unnecessary and un-American. In the modern era, the requirement has even been characterized as racist because most immigrants these days come from Asia and Latin America.

In researching the article, I also learned that this hostility towards the “natural born” requirement is decidedly non-partisan. For years, people on both the right and the left have advocated that we eliminate it from the U.S. Constitution. Indeed in recent years, the governorship of Arnold Schwarzenegger seemed to spark a particular flurry of articles on the subject from Republican (or Republican leaning) persons.

I wrote my article after Barack Obama was elected president, around the time of his inauguration. In the paper, I noted that during the election season questions had been raised about both of the major party candidates’ ability to satisfy the “natural born” citizen requirement. In my research, it seemed that the questions about Barack Obama’s qualifications were pretty far fetched or were just wrong from a legal perspective. Some focused on the Kenyan citizenship of Obama’s father, but ignored the fact that his birth on U.S. soil (i.e., in Hawaii) is what is key to the “natural born” requirement. There have also been silly rumors that Barack Obama’s Hawaiian birth certificate was a forgery and he was born in Kenya. There was also an assertion that he was adopted in Indonesia. (Perhaps if Bill Clinton had spent any time outside the U.S. as a child, folks might have attacked his qualifications as a “natural born” citizen, but I suppose Clinton’s sexual escapades provided sufficient fodder for his opponents.)

Interestingly, in researching my paper I learned that more serious legal questions were actually raised about John McCain’s qualifications. As a result, the senator’s presidential campaign requested an opinion on the subject from two legal heavy-weights: Professor Laurence H. Tribe of Harvard and former Solicitor General Theodore B. Olson. The two learned men concluded that Senator McCain did satisfy the “natural born” citizen requirement. Nonetheless, the opinion of Professor Tribe and Mr. Olson has not been accepted by all experts. Several articles have been written refuting or expressing doubt about the conclusion of Professor Tribe and Mr. Olson. See e.g. Gabriel J. Chin, Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008); Lawrence B. Solum, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008).

I personally reserve judgment, I have not investigated that particular legal issue in enough depth. But I raise these doubts simply to flag that even if Barack Obama had not won the presidential election, it is quite possible that some folks would be questioning the legitimacy of the current presidency. (I would not be among them, but others might have.)

Nonetheless, when I wrote my article in early 2009, it frankly never occurred to me that after Barack Obama took the oath of office some bitter folks would devote so much time and effort to continue to harp on the “natural born” question though there is just no legal issue. The current state of affairs is really tragic. Our country has a lot of other pressing issues we ought to all be trying to solve instead of fighting each other over baseless fantasies to overturn the election results.

Moreover, the point of my article was that the “natural born” citizenship requirement ought to be eliminated in order to give all American children confidence that there are no limits to what they can achieve in this country if they work hard. In the article, I advocated a grassroots movement to eliminate the “natural born” citizen requirement from the U.S. Constitution. But in the current political climate, that will never happen. I’m an optimist, but I’m also a realist. Even if a grassroots movement arose, in the current climate, President Obama’s adversaries would simply charge that such efforts were a personal attempt to legitimize an illegitimate Commander-in-Chief. So, as far as I see, we are stuck with this ridiculous requirement for a long time to come.

Hebrews 11:8-16

By faith Abraham obeyed when he was called to set out for a place that he was to receive as an inheritance; and he set out, not knowing where he was going. By faith he stayed for a time in the land he had been promised, as in a foreign land, living in tents as did Isaac and Jacob, who were heirs with him of the same promise. For he looked forward to the city that has foundations, whose architect and builder is God. By faith he received power of procreation, even though he was too old—and Sarah herself was barren—because he considered him faithful who had promised. Therefore from one person, and this one as good as dead, descendants were born, “as many as the stars of heaven and as the innumerable grains of sand by the seashore.” All of these died in faith without having received the promises, but from a distance they saw and greeted them. They confessed that they were strangers and foreigners on the earth, for people who speak in this way make it clear that they are seeking a homeland. If they had been thinking of the land that they had left behind, they would have had opportunity to return. But as it is, they desire a better country, that is, a heavenly one. Therefore God is not ashamed to be called their God; indeed, he has prepared a city for them.

The Footprints of God—Paul: Contending for the Faith (2004)

I think the Apostle Paul is fascinating, so I recently rented this documentary about his life. It is part of a multi-volume series, “The Footprints of God,” but this is the only one I have ever watched. It was produced by a Catholic film company.

To be quite honest, my husband couldn’t get beyond the cheesy film techniques. The narrator was an American who dressed a bit like the Crocodile Hunter. His analogies and theatrics were at times a little over the top. My husband kept laughing and shaking his head.

I agreed the documentary’s style had a high cheese factor, but I was able to overlook these cinematic foibles. I thought the film did a great job of telling St. Paul’s story in greater detail than a lay person can glean from just reading the Bible. The documentary wove together coherently many different parts of the New Testament, as well as the research insights of historians, anthropologists and archeologists.

I would characterize the film as being like an episode of Rick Steves’ show if he became a televangelist with a Catholic bent. The narrator told the story of St. Paul’s life while traveling to the various places the apostle lived. I don’t know if I’ll ever get to visit the places where the people described in the Bible lived, so it was fascinating to at least see what those varied places look like via film.

There were several aspects of the film’s telling of Paul’s life that struck me in particular. I have always been amazed at the conversion story of Paul. A devout, zealous Jew goes from persecuting Christians to becoming the most celebrated Christian evangelist and missionary of all time. What a dramatic 180! The film talks about Paul’s prior confidence in the righteousness of his own observance of the Mosaic laws and persecution of the Christians. Then he has a miraculous encounter with the post-Easter Jesus, who asks “Why are you persecuting me?” The narrator emphasizes that Jesus did not ask why Paul was persecuting the church or his people, but “me.” The film talks about how that encounter laid the foundation for much of Paul’s later theology.

Subsequent to the encounter, Paul is humbled; he is physically blinded and led to Damascus like a child. The Bible tells us that the miraculous encounter on the road to Damascus convinced Paul that some of his most strongly held beliefs had been incorrect. What tremendous humility Paul must have had to accept that. It is probably human nature to be very confident in our own beliefs and think others are wrong. I’m not sure all of us would have had Paul’s humility to admit he had not been as correct as he thought. What a great example for the rest of us.

The film also describes Paul’s later presentation to the leadership of the early Christians, and how he spent a number of days alone with Peter, who gave him instruction in the faith. How remarkable that Peter, who had much to fear and mistrust from Paul, was able to see that God was going to use Paul to spread his message of unconditional love. And it was striking that Paul, the learned scholar, would humble himself to take instruction from Peter, an uneducated fisherman. How amazing that God can use each of us, regardless of our backgrounds, to do great things. I admire Peter’s courage. And again, I admire Paul’s humility.

It was also amazing to me that Paul was almost constantly in trouble with the authorities. He was often jailed, or he was fleeing those who wanted to arrest him. I guess I had not previously thought of St. Paul as an outlaw. But indeed that is exactly the point that the film made. The film demonstrates quite dramatically the daring escapes Paul made to avoid capture by the authorities, and it describes how he was often fleeing just one step ahead of the law. It is interesting to me that Paul did not just turn himself in to authorities when they were looking for him. On at least one occasion, God did perform a miracle to get him out of jail. And Paul trusted God fully, constantly putting himself in harm’s way to do what he understood to be God’s will. Paul survived all kinds of things that ought to have ended his life, e.g., shipwrecks, a snake bite, a stoning. As a result, Paul did not have reason to fear the authorities. But perhaps Paul did not equate compliance with misguided human laws or fallible human authorities with compliance with God’s will.

Acts 16:25-26 (King James)

But at midnight Paul and Silas were praying and singing hymns to God, and the prisoners were listening to them. Suddenly there was a great earthquake, so that the foundations of the prison were shaken; and immediately all the doors were opened and everyone’s chains were loosed.

Letters from the Other Side (2006)

In all the highly-charged posturing and debate in the United States recently with respect to illegal immigration, it saddens me that the rhetoric often overlooks the human side of these issues. Like many issues in our public life these days, the issues often get oversimplified. Often the discussions I have heard seem to degenerate to pro-immigrant v. anti-immigrant stances. Oversimplification is a problem we have with respect to a number of issues; illegal immigration is one example.

I serendipitously came across a documentary on PBS recently, Letters from the Other Side. The link below provides some information about the film:

http://www.pbs.org/aboutpbs/news/20060828_HispanicHeritage.html

I thought the documentary did a good job at providing Americans with some insight into the experience of Mexican families with relatives who come to the United States. The documentary chronicled the experiences of several Mexican women in small towns in Mexico, who have had male family members leave to cross the border illegally and work in the United States. The women explain in some detail the economic challenges of simply providing food for their families. There are no jobs and their entrepreneurial efforts yield discouraging results. Some of the women in the film cite NAFTA as the prime culprit; they indicate that local Mexican markets are now flooded with cheap goods from the United States and the local Mexican producers cannot compete. They explain that in desperation over the dire economic situation, the husbands and sons of these families have left for the United States to help support their families.

The women describe the resulting heartache of the separation of their families. Because of the life-threatening dangers (and high economic costs) associated with crossing the border illegally, the men rarely come home once they have arrived in the United States. To do so would be to risk their lives. Consequently, fathers are seldom home for holidays or major family milestones. The documentary shows the impact on children who grow up yearning for--but never knowing--their fathers.

Moreover, men who go north sometimes start families there. One woman in the documentary looks longingly at a video of her American-born granddaughter whom she may never meet. The woman cannot travel to the U.S., and it is too risky for the little girl’s father to cross the border to bring her to visit her family in Mexico. The documentary shows the separation causes irreparable harm and leads to the disintegration of the family unit.

The documentary emphasizes the acute physical dangers of crossing the border illegally. One man, who has done it successfully, describes in the film the dangers of crossing the barren desert, and how he has seen men traveling with him die. He describes how those experiences have impacted him deeply. Two of the women in the documentary are the widows of men who died horrific deaths at the hands of human traffickers as they tried to make their way through Texas without interception by the authorities.

Through out the interviews, the documentary also provides insightful statistics. They note a stark increase in the number of people who have crossed the border illegally in the last decade, and the rise in remittances as a percentage of GDP. Remittances from relatives in the United States are now the second largest revenue source in Mexico, just after petroleum. Remittances now account for more revenue than derived from tourism. The statistics also describe a build up of manpower along the United States side of the border during this same time—particularly since 9/11. There are also grim statistics about the frequency that people crossing the border illegally die in the process.

I am the first to admit I don’t know the root causes of Mexico’s current troubles. Poverty has been a problem in Mexico for decades, but it seems like the economy is worse than it has been in the past. I don’t know if NAFTA is the cause or not.

Beyond the economic issues, security is also a serious problem. Warring drug lords have killed thousands of Mexicans in recent years and parts of Mexico are under military control. Many of us Americans, who have in the past loved visiting Mexico, no longer feel it is safe to go there. In the 1990s, my husband and I enjoyed visiting vibrant, cosmopolitan cities like Monterrey and Mexico City. We would love to take our children to see the sites in those cities, but it doesn’t seem safe enough any more.

I also know a lot of people in El Paso, Texas. In the past, folks in that border city enjoyed going to Juarez frequently to shop or to eat in one of the many excellent restaurants. Those activities have largely dried up. Americans aren’t crossing like they used to. The small businesses in Juarez that relied upon those visitors used to support a middle class on the Mexican side of the border metropolis, but many such businesses have failed in recent years. I have read that in El Paso there is now a growing business in renting middle class homes to Juarez professionals who find it is no longer safe to live in their home town. I am not sure why the drug wars have become so much more violent than they used to be. But it seems clear that Americans are at least in part to blame; it is our country’s demand for those drugs that fuels the illegal drug trade in Mexico.

It seems to me that the current bitter American debate about illegal immigration is misplaced to some degree. Surely we can all agree that it is no long-term solution to Mexico’s problems for a large number of the country’s citizenry to emigrate (legally or illegally). The separation of families and the dependence on remittances deeply harms Mexico and its people in social, cultural and economic ways. In my opinion, building an eyesore of a fence and enacting state laws to scapegoat illegal immigrants are not productive ways to deal with the situation. Those are mean-spirited actions that at best put a band-aid on a gaping wound. To find a long-term, effective solution, it seems to me we in the United States must look to Mexico as an equal partner to work together to find ways to build up the economy on both sides of the border.

1 Samuel 26:24(Amplified Bible)

And behold, as your life was precious today in my sight, so let my life be precious in the sight of the Lord, and let Him deliver me out of all tribulation.

Immigration Laws and Moral Judgments

In all the debate about S.B. 1070 and illegal immigration, I have heard a lot of bitter and emotionally-charged arguments made. The saddest, in my opinion, have been certain arguments raised on moral grounds. Specifically, I have heard supporters of S.B. 1070 assert that people who come to our country in violation of our immigration laws are acting immorally. It has even been asserted that parents who come here in violation of U.S. immigration laws are setting a poor example for their children. Some have even argued that parents who are here illegally ought to take their families back to their countries of origin in order to teach their children proper ethics. I have heard the people who make such arguments point out rather proudly that their own forbearers came to this country in compliance with its immigration laws. They believe others ought to do the same.

To be clear, I certainly believe in the rule of law. I am a lawyer and a law professor after all. It would be a betrayal of my profession and my entire professional life to believe otherwise. And having lived in border states the vast majority of my life, I am acutely aware of the violence and crime that can be associated with human trafficking.

However, I also do not believe in turning a blind eye to reality. In my opinion, we should take our patriotism seriously enough that we question both the underpinnings and the repercussions of our laws. And we ought to be critical of unjust or ill-advised laws; we ought to advocate appropriate changes when they are warranted. Ours is a country built on democratic values after all, not one built on blind allegiance to those in power who enact our laws. For several reasons, it saddens me deeply to hear such comments that express moral superiority over those who violate our immigration laws.

We should note that many of our own citizens frequently violate our laws. Drivers routinely operate their vehicles in excess of the posted speed. Such actions are violations of our traffic laws, which are intended to keep us safe on the roads. But most speeders are never even pulled over or issued a ticket.

It is also widely acknowledged that there is a huge “tax gap” (i.e., the difference in the amount of taxes legally due and the amount that is actually paid). Such underpayment of what is owed is a violation of our tax laws, which are intended to keep the government operating. Among other things, such tax revenues enable the government to provide supplies and salaries to our men and women in uniform, and to build roads that support the many transactions upon which our economy depends. Interestingly, experts tell us that most violators of our tax laws are individual taxpayers, not corporations.

Possession and use of narcotics have also been illegal for a number of years in the United States, yet the use of such narcotics is widespread in this country. Our prisons are populated largely by people who violated such laws, though many others violate them and are never arrested or prosecuted. (Notably, the last three men elected president have fallen into that latter category.)

In my experience listening to the debate, the folks who argue that it is morally unacceptable to violate our immigration laws do not seem to ever argue it is also unethical to violate speed limits and/or tax laws. I do not even hear them making moral condemnations of our citizens who use narcotics illegally. Personally, that latter example of hypocrisy is particularly offensive to me. Surely we can all agree that much of the current narcotraffic-related violence terrorizing people in Mexico is at least partially the fault of the United States. We have collectively insisted on criminalizing drugs in our country, yet our own people ignore those laws and (tragically) have created a huge demand for illegal narcotics. To be consistent, if we are wagging fingers at violators of our immigration laws, shouldn’t we also look down our noses at our citizens who violate our drug laws (and foolishly risk their health)? To be clear, as a Christian, I am not advocating that we make moral judgments against anyone. But I flag the hypocrisy of making moral judgments against those who break certain laws, but not making moral judgments against those who break others.

In my own experience, people who make morality-based arguments against illegal immigration tend to be of European ancestry. I have yet to hear Asian Americans or African Americans make such comments for example. But European Americans, who boast that their forbearers came here legally, overlook (or are perhaps simply ignorant of) certain structural advantages their forbearers enjoyed. (As an American of European ancestry, my own forbearers certainly enjoyed those same structural advantages.) When I was a law student and took a course on Immigration Law I became aware that through out our history as a nation American immigration laws have been heavily skewed in favor of immigrants from Europe. Until certain reforms were instituted in the 1960s, it was very difficult—or at times outright impossible--for people from Asian, African or Latin American countries to immigrate legally to this country. Yet at the same time, the doors were typically open to immigrants from Europe as long as they were not mentally ill, did not have a communicable disease or otherwise were not personally deemed to be undesirable. To be sure, those European immigrants were not always warmly welcomed when they first came or even after they arrived. But the bottom line is that legal immigration was typically much easier for those European immigrants than if they had come from other parts of the world. It is no wonder that the forbearers of European Americans largely obeyed the immigration laws in effect when they came to this country. Those laws were pretty favorable to them. It generally benefited such individuals to obey such laws. Indeed, there was no real incentive to do otherwise.

Daniel 9:11 (New King James Version)

Yes, all Israel has transgressed Your law, and has departed so as not to obey Your voice; therefore the curse and the oath written in the Law of Moses the servant of God have been poured out on us, because we have sinned against Him.


Galatians 5:1, 7-8, 14 (New King James Version)

Stand fast therefore in the liberty by which Christ has made us free, and do not be entangled again with a yoke of bondage.

You ran well. Who hindered you from obeying the truth? This persuasion does not come from Him who calls you.

For all the law is fulfilled in one word, even in this: “You shall love your neighbor as yourself.”[

The Text of SB 1070 and Concerns of Racial Profiling

The supporters of Arizona’s S.B. 1070 often state that the new law does not permit racial profiling, and they challenge opponents to read the text of the bill instead of making hysterical attacks in ignorance. I certainly agree that we should never react in ignorance, and should carefully study issues before making judgments.

For those who have not read the bill, it is available on the Arizona legislature’s website at: http://www.azleg.gov/alispdfs/council/SB1070-HB2162.PDF. That document contains the current version with modifications that have been made since the bill was originally passed.

The law requires that when law enforcement stops, detains or arrests an individual, “A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON,” whenever “REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO AND IS UNLAWFULLY PRESENT IN THE UNITED STATES.”

Thus, the plain words of the law make it mandatory to “determine the immigration status” of such persons whenever there is “reasonable suspicion” of unlawful presence in this country. However, this requirement is only mandatory “when practicable.” I frankly have no idea what that important modifier means. Under what types of circumstances would it be “practicable” to try to determine one’s immigration status? What kinds of situations might make it impracticable? I certainly would welcome enlightenment on this point. It appears to be a very ambiguous phrase. With such ambiguity in statutory drafting there are a host of potential pitfalls—including (but not limited to) unbridled discretion in the hands of law enforcement. Unbridled discretion in the hands of any mere mortals seems unwise.

The following passage also appears in the text of the law:

...A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT [SOLELY] CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION.

Per the legislature’s website, the word “solely” originally modified the anti-racial profiling language in the law, but that important modifying language has been removed from the current version. Thus, the plain words of the statute originally permitted law enforcement to consider “race color or national origin” as long as there were also other factors that gave rise to “reasonable suspicion” that the person was unlawfully present in the United States.

However, on its face, the current version of the law seems to indicate that law enforcement may not consider “race, color or national origin” at all--not as the sole factor or even as one of several factors--except to the extent either the U.S. or Arizona Constitutions permit racial profiling. For a few reasons, this passage from the law is curious to me.

First, I must admit that I am not a constitutional law expert and I am not sure how much racial profiling either constitution might permit. For example, I would think racial profiling would be a violation of the Equal Protection clause of the U.S. constitution, but perhaps there are exceptions this language is intended to exploit.

Secondly, even assuming the constitutional exception is narrow, in everything I have read and heard in discussions of the law, I have yet to hear how law enforcement will decide when there is “reasonable suspicion” without resorting to consideration of “race, color or national origin.” That really seems to be the key issue in the whole controversy surrounding S.B. 1070. The law seems to forbid racial profiling on its face, but it is not clear what factors beyond “race, color or national origin” would trigger “reasonable suspicion.” I would very much like to hear what law enforcement techniques are used to ensure this important provision of the law is honored.

Deuteronomy 10:17-21

The Lord your God is God of gods and Lord of Lords, the great God, mighty and awesome, who is not partial and takes no bribe, who executes justice for the orphan and widow, and who loves the strangers, providing them food and clothing. You shall also love the stranger, for you were strangers in the land of Egypt. You shall fear the Lord your God; him alone you shall worship; to him you shall hold fast, and by his name you shall swear. He is your praise; he is your God, who has done for you these great and awesome things that your own eyes have seen.

Guest Blogger McKay Cunningham on Environmental Sustainability

Dominion vs. Stewardship: Do Christians lead the way or trail behind the movement toward environmental sustainability?

It wasn’t long ago that that those who strapped themselves to giant oak trees hoping to forestall development were castigated as loonies. Environmentalists, once denigrated as fringe alarmists, now enjoy popular support. National polls reflect consensus; Americans believe there should be stronger policies protecting open space, that it is everyone’s obligation to protect undeveloped lands, and that more lands should be set aside for rare or endangered species, national parks, and protection of historical landscapes. There is a growing acknowledgement that the supply of wild lands is limited and that access to natural, undeveloped lands benefits society. Eroding plant and animal diversity through land development and destruction of natural animal habitats increases popular anxiety.

In response, federal and state governments have added land and funding to national parks and other conservation efforts. Park based funding increased from nine-hundred million dollars in 2001 to over one billion dollars by 2006. Park acreage increased incrementally from seven million acres in 1930 to nineteen million acres in 2000.

Despite popular support and government-initiated efforts, forty million acres of land – larger than the state of Florida – were newly developed between 1992 and 2007. No doubt, complex and nuanced factors contribute to such rampant development. One such factor is the historic and deeply rooted pro-development policy embedded within American property law. In the county’s infancy a pro-development policy made sense. As a sparsely populated nation with more wilderness than production capacity, national leaders promoted colonization, cultivation, and development of wild lands – often giving away millions of acres on the bare promise that the grantee would develop. Over time, our law fully integrated these pro-development constructs.

While critical in the country’s infancy, encouraging land development through legal constructs is less important and arguably detrimental now. These long-standing legal constructs encourage land use and as a result discourage conservation. Our need to develop wide swaths of wild land has changed; our common law has not.

How has the Christian perspective played into this evolution?

On the one hand, scads of recent publications promote “stewardship.” (The Sojourner’s website offers several titles). Under the stewardship model, the Christian is not the owner of her property but a mere trustee. A strictly legal owner may use the property entirely for himself, excluded others from it, possess it, transfer it and destroy it. A Christian owner, however, must use it for the common good – or perhaps more accurately, for the good of those most in need. It cannot be excluded from others, destroyed or exploited for personal gain. From this perspective, the stewardship model parallels popular environmentalist sentiment. But it hasn’t always been so.

While progressive Christians may proclaim environmental sensitivity today, we certainly cannot claim the same environmentalism historically. In fact, religious dogma arguably helped create America’s pro-development policy. Nineteenth century Judeo-Christians harbored animus toward the wilderness, according to some historians. The book of Genesis confers dominion to mankind over all birds and beasts; believers are admonished to “fill the earth and subdue it.” Early settlers took these provisions to heart, viewing uncultivated wild land as dangerous and ungodly. The controversial 1967 article by historian Lynn White decried the Judeo-Christian worldview of dominion as incompatible to environmentalism.

Of course, this assertion of dominion over nature and subjugation of wild lands to the will of mankind is not the sole cause of modern America’s pro-development proclivities. In fact, it is plausible that nineteenth century Christians merely mirrored the popular sentiment of the day.

One scholar suggests that the nineteenth century American public – regardless of religion – uniformly valued development over conservation. Professor John Sprankling argues that Americans valued land exploitation and disdained uncultivated and unimproved land: “This model mirrors the historic American view that forests, wetlands, grasslands, deserts and other lands in natural condition contribute nothing to the social welfare until they are converted to economic use.” Forests, wetlands, deserts, hill country and other undeveloped land were seen as worthless until cleared, drained, cultivated or otherwise converted into economic use. Visiting from France in the early nineteenth century, Alexis de Tocqueville observed that Americans “are insensible to the wonders of inanimate nature and they may be said not to perceive the mighty forests that surround them till they fall beneath the hatchet. Their eyes are fixed upon another sight . . . the march across these wilds, draining swamps, turning the course of rivers, peopling solitudes and subduing nature.”

So where does that leave the progressive Christian?

Unfortunately, the prevailing Christian view in the nineteenth century reflected the popular view at the time. Today, the prevailing Christian view again reflects the popular view. Did we get it right this time or are we simply following the path of least resistance?