Monday, October 14, 2019

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Abstract

Excerpted From: George A. Martínez, Arizona, Immigration, and Latinos: The Epistemology of Whiteness, the Geography of Race, Interest Convergence, and The View from the Perspective of Critical Theory, 44 Arizona State Law Journal 175 (Spring 2012) (181 Footnotes) (Full Document)

 

GeorgeAMartinezArizona recently enacted or proposed a scheme of laws regarding immigration and Latinos/as. These laws proved to be extremely controversial. Some of the most important of these laws or proposed laws are as follows.

On April 23, 2010, Arizona Governor Jan Brewer signed legislation known as Senate Bill 1070 (S.B. 1070), which deals with the issue of immigration in Arizona. The purpose of S.B. 1070 is to make “attrition [of undocumented persons] through enforcement the public policy of all state and local government agencies in Arizona” and “to discourage and deter the unlawful entry and presence of aliens.” Importantly, Section 2 of S.B. 1070 requires:

For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of country, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The law further states that in determining whether there is a “reasonable suspicion” that someone is an undocumented person a “law enforcement official . . . may not 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.” Section 2 also provides that Arizona residents may file a lawsuit against Arizona officials that fail to enforce the “federal immigration laws . . . to less than the full extent permitted by federal law.”

In addition, in May 2010, Governor Brewer signed legislation, House Bill 2281 (H.B. 2281), which outlawed ethnic studies. Section 1 of H.B. 2281 forbids school districts from teaching any courses which, among other things, “are designed primarily for pupils of a particular ethnic group” or “advocate ethnic solidarity.”

Finally, House Bill 2582 (H.B. 2582) proposes legislation that would forbid courts in Arizona from applying international law as either “controlling or influential authority.”

On July 6, 2010, the United States of America filed a suit in the Arizona federal district court challenging S.B. 1070 as unconstitutional and preempted by federal law and seeking a preliminary and permanent injunction to prevent the enforcement of S.B. 1070. On July 28, 2010, Judge Susan Bolton ruled in favor of the United States and issued a preliminary injunction against the enforcement of certain sections of S.B. 1070. On April 11, 2011, the United States Court of Appeals for the Ninth Circuit affirmed the decision of the district court and upheld the preliminary injunction. On August 10, 2010, the State of Arizona filed a petition in the United States Supreme Court that sought to overturn the lower federal court rulings regarding the Arizona immigration law.

In this Article, I analyze this scheme of laws in Arizona regarding immigration and Latinos by using the powerful tools of contemporary critical theory, which have been especially developed to analyze issues of race such as those presented in the laws at issue. As discussed below, critical theory, as applied to Arizona, reveals (1) that the newly enacted scheme of laws reflects an epistemology of whiteness and operates to transform Arizona into a white geographical landscape; (2) that the outlawing of ethnic studies in Arizona is a corollary to the establishment of a white geographical space in Arizona; (3) that legal decision-making regarding the Arizona immigration law is explained by interest convergence theory especially as reflected in the federal government's concern about the Arizona law's impact on international relations; (4) that Arizona's effort to escape the reach of international law is explainable by state-of-nature theory and that theoretical work on the changing nature of the American constitutional order, which holds that our country is shifting from a nation state into a market state, shows that this effort will not succeed; (5) that to the extent that Arizona's laws have been enacted to preserve American culture, the laws are wrongheaded and will fail; (6) that Arizona's new legal regime provides evidence to support a new power threat theory that the dominant group will impose legal controls on Latinos as the Latino population grows in size; and (7) that it would appear to be premature to conclude that the Arizona legal regime is the first step toward establishing apartheid in America.

[. . .]

Arizona has recently enacted or proposed a legal regime regarding immigration and Latinos. These laws have generated a great deal of controversy and have given rise to a national debate over immigration policy and race relations in America. Among these laws are (1) S.B. 1070--the Arizona immigration law that promotes attrition of undocumented persons through the enforcement of a variety of laws designed to crack down on immigrants; (2) H.B. 2285, which bans ethnic studies courses in Arizona school districts; and (3) H.B. 2582, which proposes legislation that would prevent courts in Arizona from applying international law, including international human rights norms, to decide cases.

In this paper, I analyzed this set of laws in Arizona by using the powerful tools and insights of critical theory, including critical-race theory and critical geographies of race. As I have demonstrated, critical theory, as applied in Arizona, reveals (1) that the newly enacted scheme of laws reflects an epistemology of whiteness and operates to transform the State of Arizona into a white geographical landscape; (2) that the outlawing of ethnic studies in Arizona is a corollary to the establishment of a white geographical space in Arizona; (3) that judicial decision-making regarding the Arizona immigration law is explained by interest-convergence theory especially as shown in the federal government's concern about the Arizona law's impact on international relations; (4) that Arizona's effort to escape the reach of international law is explainable by state-of-nature theory and that this effort is unlikely to succeed in light of theoretical work on the changing nature of the American constitutional order, which holds that our nation is changing from a nation state into a market state; (5) that to the extent Arizona's laws have been enacted to preserve American culture, the laws are misguided and will fail; (6) that Arizona's new legal regime provides evidence to support a new power threat theory that the majority will impose legal controls on Latinos as the Latino population grows in size; and (7) that it would appear to be premature to conclude that the new Arizona system of laws is the first step toward establishing apartheid in America.


Professor of Law, Dedman School of Law at Southern Methodist University, B.A. Arizona State University; M.A. (Philosophy) University of Michigan; J.D. Harvard University.


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