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Jonathan Weinberg, Proving Identity , 44 Pepperdine Law Review 731 - 798 (April 2017)(475 Footnotes Omitted) (FULL ARTICLE)


JonathanWeinbergWe've all been displaying identification documents a lot lately. You have to show ID to vote, in most states. Federal law requires that you show ID to accept employment, and there are some in Congress who would go further--requiring anyone in the United States to display a new national ID card before taking any job. More and more, we're getting used to demands that we verify our identity at different moments in our daily lives.

And the nature of the documents that we need to show is changing. Visitors to U.S. military bases need to identify themselves to be admitted; until recently, a state driver's license sufficed. If you live in Chicago, though, and display your Illinois driver's license at the gate of the naval training center there, you'll be turned away now. The U.S. government ruled last year that it won't accept an Illinois driver's license for that purpose because, it says, Illinois driver's licenses don't satisfy federal security standards. The federal government has announced that in the future it will disqualify residents of certain states from using their driver's licenses to pass through airport security. So it's not merely that the law requires us at various moments in our lives to show identification documents. The federal government increasingly is seeking to dictate the manner in which those documents are issued.

If you're not a U.S. citizen, but you are physically present in this country, federal law is stark: it requires you to carry, at all times, in your personal possession, federally issued documents establishing your identity and your immigration status. This isn't at all new. Looking back through United States history, people whose race rendered them noncitizens or of dubious citizenship have been subject to similar rules requiring that they carry identification documents: free blacks in the antebellum period, and Chinese immigrants beginning in 1892. The current law requiring noncitizens to carry ID can be traced to a 1952 effort to save the country from Communism. White U.S. citizens have also sometimes been subject to legal sanction if found without ID, including men of draft age during World War I and (nominally) from 1940 to 1975, and the disreputable poor in some jurisdictions during the 1970s and early 1980s.

Current pushes for new ID requirements, like the older ones, tend to be attached to immigration and national security initiatives, and to be heavily rooted in race. Arizona's 2010 Support Our Law Enforcement and Safe Neighborhoods Act is exemplary. Enacted in an environment of widespread police racial profiling and unlawful stops, detentions, and arrests of Latinos, it made it a state crime for any non-U.S. citizen to fail to carry federal immigration documentation. Current U.S. Border Patrol enforcement can be seen through the same lens. Agents understand themselves to have the authority to detain and demand papers from anyone they encounter within one hundred miles of a border who appears to be foreign-born; unsurprisingly, their enforcement targets skew brown.

How should we understand these mandates? Historically, we have most commonly used identity-papers requirements to control those outside our legal circle of citizenship--African Americans in the antebellum South, Chinese immigrants, and legally resident aliens. All of these groups have been perceived as including members who were subversive, encroaching, or illegal, but who would be too hard to identify and classify without the aid of forced identification. In the military draft context, we sought to use a less problematic version of the same technique to identify citizen "slackers"--to avoid a feared splintering of citizenship by means of (perceived) shirking from crucial national obligation and sacrifice. We've thus used identity-document controls to maintain a hold over noncitizens, and to cleave those whom the majority perceived to be unreliable citizens.

But there's more going on. ID requirements are threatening, on multiple fronts, to those forced to identify themselves. From one perspective, the foundational aspect of identity cards is that they connect one's physical body with a government database. Without a requirement that persons carry identity papers, a law enforcement officer encountering an anonymous citizen has no access to the database-stored information that would provide a basis for arrest. With such a requirement, that information is visible to the officer, and it puts the holder's body at risk.

From another perspective, law enforcement's ability to demand identity cards relates to issues of dominance and hierarchy. American ideology assures us that free persons can move about without having their bona fides questioned, without having a police officer able to demonstrate his authority and their subordination by forcing them to display identification. That understanding, indeed, is reflected in Supreme Court case law.

Either way, it's unsurprising that we've been much more willing throughout our history to impose identification requirements on minorities--on those outside our circle of citizenship--than on ourselves. A few years ago, the Senate drafters of a comprehensive immigration-reform bill urged that every person who sought to work in the United States--citizen and noncitizen alike--should have to get a new machine-readable ID card bearing his biometric information and establishing his legal authorization to work. But while the larger bill in which that proposal was embedded passed the Senate, the ID-card proposal did not; it was dropped. Similarly, aspects of the 2005 REAL ID law, seen as tending to create a national ID card, have seen continuing resistance and pushback in some states and local communities.

And yet it's still fair to say that we're seeing a drift towards greater acceptance of ID requirements for all; indeed, those challenged REAL ID provisions are still on track to be implemented. How should we understand that development? In this Article, I tell the story of identity-papers rules in the United States and draw some conclusions.

Part I begins by examining the pre-Civil War rules imposed on many free blacks requiring that they carry documentation.

Part II considers the more encompassing identity-papers requirement applied to Chinese migrants starting in 1892.

Part III shifts to World War I, and a regulation providing that all men of draft age carry draft registration certificates at all times.

Part IV looks to the requirement, dating from the McCarthy era and still in force, that noncitizens register with the U.S. government and carry their registration cards at all times.

Part V considers the Vietnam-era draft-card controversy, and a set of state and local laws in force roughly contemporaneously requiring vagrants and undesirables to provide identification on demand.

Part VI, finally, considers REAL ID and identity demands in the modern context.

. . .

On several occasions in our history, U.S. law has imposed a requirement on some group that its members register and carry identification. These rules fill a gap in the policing authority of the state by connecting the individual's physical body with the information the government knows about him. They entail humiliation and some degree of subordination. Accordingly, when we've imposed such requirements, we've almost always imposed them on people outside our circle of citizenship--on free blacks, on Chinese immigrants, on aliens, on (racialized) vagrants. Current developments in United States identity management, though, seem to be moving us closer to a universal identity-papers regime that has much in common with our older ones.

Professor of Law, Wayne State University.




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