Actual Paper Link

Abstract:

This paper will discuss the phrasing of the First Amendment and how this interpretation potentially affects undocumented immigrants, particularly Mexican immigrants, and their need to obtain First Amendment protection especially now during President Donald Trump’s administration. This paper will argue in favor of protection towards those who express their beliefs, and opinions towards the American society while still not being considered part of an exclusive group called “citizens” and “residents,” but taking part in today’s American economic society nonetheless. The issues of relative importance in today’s society will be portrayed by the case of Hernandez v. Meza, President Donald Trumps mass deportation policies, and undocumented immigrants economical contributions to America.

Sergio Hernandez was shot at the Border by a border patrol official. He held no

substantial ties to U.S. land, and video shootage captured the events of the incidence concluding that the border patrol agent had actually not been acting in self defense, but rather shot the boy with malintention from a distance of 60 feet. This case hearing has recently been scheduled for revision by the U.S. Supreme Court once the new U.S. Justice, Neil Gorsuch, appointed by recently elected President Trump, comes into office. This case will reflect the First Amendment meaning in present day America with regards to social and political interpretations. With the death of Antonin Scalia, and his quoted statement of “the people in a political context,” and the case of Verdgo-Urquidez versus the Supreme Court(1990) implementing the Supreme Court decision that the term “the people” used by the U.S. Constitution refers to, “a class of persons who are part of a national community or who have developed suficient connections with this country to be part of that community.” In this way, Antonin Scalia’s view on “the political context,” refers then to those who have created sufficient connections within this country. Additionally, the First Amendment was created to limit government power rather than a limitation of “the people.”

This issue is important today because in 2015 the Department of Justice stated that, undocumented immigrants who have not lawfully been admitted to the U.S. hold no rights to the First Amendment within the case of Pineda Cruz v. Thompson(2015). Michael Kagan, professor of Law and Director of the Immigration Clinic in the University of Nevada, argued that this particular case with a group of detained woman in Korens, Texas would have been ruled unconstitutional had their national status been different. In this case the woman  who had silently protested by not eating for five days regarding their considitions, the detention center then punished the woman for their hunger strike threatening them to seperate the mother and children. The woman then claimed this was a violation of their first amendment rights, which the Court case denied on the basis of the Department of Justices statement. Professor Kagan in his analysis of the case went on to explain how the case of Citizens United v. FEC shows doctrinal support against the claim denying First Amendment rights based on identity rather than content of speech. This claim in its context would affect existing undocumented movements seeking rights, marching for justice, and limiting their voice to one of fear to reporting exploitation from employeers, or from racial discrimination treatments. However, the stance taken by the Department of Justice may have been largely influenced by the possibility of the new president elect becoming Donald Trump who held many racial disciminating undertones. This political stance may also signal the increase discomfort towards the topic of immigration, and the social implications which arise from a political occurance such as the election of a new president.

Therefore, by this stance, the election of President Donald Trump, has signaled large implications towards the social acceptance, or rejection towards those who hold an undocumented status in the U.S. With the election of Donald Trump there has been a rise in immigration enforcement, and racial discrimination which is often mostly aimed at Mexican immigrants, but also includes African Americans and Muslim American immigrants. Increased proposals towards mass deportations, at one point, proposals towards an increase of aggressive enforcement of immigration laws empowering local law enforcement to perform the functions of immigration officers, and the proposal for a Wall at the Border of Mexico has helped increase the racial tension, and distinction between Mexican undocumented immigrants, and the American society. This does not only affect Mexican undocumented immigrants, but also includes those who look Mexican being affected. CNN addresses Trumps proposal of local law enforcement increasing their functions empowering them to act as law enforcement officers, and adds a statement by the Department of Homeland Security addressing that the policies set forth by Trump are not common functions of an expansion of existing laws even though Trump claims they are.The differrence in execution is shown by the Obama administration where President Obama sought to target three groups in deportations including: convicted criminals, public safety threats, and those who recently crossed the border illegally.Trump, however, explains his plan by: the ebuilding of the wall in the Southern border, and detaining and deporting individuals who have any sort of criminal record including DUI’s.

The fear in today’s society is in mass deportations by the undocumented immigrants, and even though Donald Trump claims he will no longer conduct these deportations there is doubt. Only one of his cabinet members is hispanic, and those who didn’t agree with his vision of America as a nation of Americans, not America as a nation of immigrants, not America as a nation to grow, but to make, “America Great Again” where not appointed to cabinet member positions. How can we make America Great again when it was not great to begin with. The only period of time when America was proffiting economically was at the peak years of 1920, and 2007. What do these two years have in common? Governments provided social insurance, and expanded public investment, accoding to Robert Reich: America’s Secretary of Labor in Bill Clinton’s Presidency. However, during the 1970s social investment was only aimed towards White Americans rather than people of all skin tones. Donald Trump does not want to provide social insurance, but rather is aiming to end Obama care, and not implementing pregancy leave for fathers to help their wifes with child caring. Donald Trump also does not want to expand public investment except for spending geared towards deportation policies. He seeks to conduct massive taxes cuts for the top one percent. The last time this was done the difference in earning wages between the rich and the poor grew exponentially in the Regan administration. So, why is the fear in mass deportations still present? Because Trump has been known to change his mind continuously in the fourty seven days he’s been in office. Why does this lead to an importance in addressing the issue of undocumented immigrants needing First Amendment protection as part of “the people”? Because the President we currently have is not aware of his action, he has no political background, and he is implementing policies which have ruled unconsitutional before. There is also a rise in racial discimination towards immigrants who are both here legally, and illegally, and there is little way to tell these two groups apart in most instances leading to what some are calling, the “Trump Effect.” This indicates instances where incidents of hate crimes have occured since Donald Trump’s campaign launch in June 2015. To say Donald Trump as a President is suitable for the position is to neglect clear signs of a regression in society rather than a progression.

By proposing an increasing aggressive enforcement of immigration laws and empowering local law enforcement to perform the functions of immigration officers exclusively. The proposal set forward by Donald Trump shows a repetition of past events, and how there is a dramatic politcal change in power shifting towards affecting American society in a social context. This new proposal is not unique, if you look up SB 1070 which was targetted at Mexican undocumented immigrants in Arizona(2010). Trump’s prosposal is paired with the idea of building a wall alinging with the southern border which clearly targets mexican undocumented immigrants for deportations above other groups. Similarly, SB 1070 allowed police officials to stop those who seemed “reasonably suspicious” of being illegal, and to some extent this led to the individuals deportations if they were not carrying proper identification stating that they were in the U.S. legally. Justice Kennedy deemed SB 1070 unconstituional because it required legal immigrants to carry proper identification at all times, and allowed police officials to arrest anyone who seemed suspicious of being an illegal immigrant according to the Washington Post. Without the voice of Mexican (un)documented immigrants in these cases, and their protests of these laws the bill would’ve still been ongoing, and their freedom of expression would have largely been limited because they would’ve been targeted as illegals by their skin color. To adress President Trump’s proposed immigration policies, society has to take into account the racial injustice of previous laws such as SB 1070 which have been found unconstitutional. Today many of these laws are targeted at mexican undocumented immigrants in particular because in 2015 they made up ⅓ of the immigrant population in the United States according to the Migration Policy Organization. To put this into perspective, in the U.S. there are 61 million immigrants residing here, and of those 61 million immigrants there is an estimate of 15.7 million undocumented immigrants according to the Washington Examiner in 2016. It is important to consider undocumented Mexican immigrants to be part of “the people” which the First Amendment addresses in order to protect them from exploitation, and in order to more strongly believe one’s ideals which comes from the idea of, “freedom for the thought[s] that we hate.”

It is also important to consider this group as being considered part of “the people”  with the inclusion of First Amendment rights due to a historical consistency of the U.S. denying these rights to other minority groups while, at times, also economically exploiting them. These groups include: African Americans, and Chinese Immigrants. African Americans were were not regarded as being part of “the people” which the United States intended to protect when the U.S. created the Constitution largely because of racial discrimination, and slavery; this point later made law interpreters conclude that because they did not originally have rights as “the people” they could not gain rights from the First Amendment. Aditionaly, because they could not claim rights from the First Amendment this group was largely exploited for the gain of the U.S. in economical terms because they provided cheap human labor rather than having the U.S. use laborers who would demand a higher pay. African American’s lack of rights under the First Amendment also denied them right to court hearings because they were not considered citizens according to the Constitution, which connects to the case of Pineda Cruz v. Thompson, such as was seen in the case of Dred Scott. The group following African Americans as a minority were the Chinese immigrants who were denied first amendment rights by not being able to testify in courts which helped racial discrimination continue towards this certain group. To put the implication of this into perspective: Vincent Chin, who was a Chinese immigrant was murdered by two white males, and the court only fined the individuals $3,780 each and two years probation because Chinese immigrants could not testify in courts and were not considered to be part of “the people” who were protected under the First Amendment rights. Therefore, by not providing a minority group First Amendment rights this invites racial injustice, and economical exploitation to take place. Therefore, this has shown that there is a connection between a country willing to exploit laborers and reap economic benefits while denying those helping the ecnomy a basic human right of freedom of speech.

By basic human right, I will address Steven J. Heyman’s, professor of law at the University of Chicago and Supreme Court editor of Harvard Review(1984) view on the First Amendment. In his book, “Freedom of Speech and Human Dignity,” he takes into account how the First Amendment was founded on “the basis for respect for autonomy, and dignity of human beings” with regards to eighteenth century view of Americans believing freedom of speech was a natural right of mankind, and was essential to the Republican government. If this is the case in which America’s First Amendment was founded upon with the views of John Locke incorporated than this means that African Americans as human beings, and Chinese immigrants should have been allowed to hold First Amendment rights by the simple ideal that they were human. However, interpretations have caused a blurring in law for which when proposing a solution to this problem, of addressing who should be considered part of “the people” in regards to the Frist Amendment, should be taken into account.

With this being said, undocumented immigrants who have substantial ties to the U.S. should be given and considered to be part of “the people” in regards to the First Amendment because the U.S. has benefitted economically from this group while denying them First Amendment rights. Economically, undocumented immigrants do not cost the state $113 billion dollars as Donald Trump stated in one of his presidential elections as an “alternative fact.” Rather of the 11 milllion undocumented immigrants their contribution in taxes every year is $11.74 billion dollars while paying eight percent of their incomes in state and local taxes while America’s top 1% of taxpayers pay only five percent of their income, according to the Institute of Taxation and Economic Policy(ITEP). ITEP also stated that granting this undocumented immigrants legal status to the U.S. for work purposes would increase state, and local tax contributions by $2.18 billion dollars a year. However, I am not advocating for the granting of their legal status, but rather their consideration as being part of “the people” under the Constitution with regards to the First Amendment. The cost to the U.S. of deporting the majoirty of these undocumented immigrants would be $30 billion dollars which would come out of increased tax payer money used from economic cuts to other departments of the nation, because this is also one of Donald Trump’s goal: to cut spending on less important aspects to the government including health care, and women reproductive services. Therefore, to reap from the benefits of this undocumented immigrant group with substantial ties to the U.S. and deny them basic rights such as the First Amendments right to freedom of expression to protect against exploitation, racial discrimination, and unecessary force by government officials is to deny them the basic human rights which the U.S. constitution was founded upon. It is necessary to consider this group as being “part of the people” for which the First Amendment is inclusive of because they have helped built up the U.S. economy, and provided to the wealth of the U.S.

“America the land of the [somewhat] free.” Even though these individuals have helped built up the U.S. economy there is now a greater sense of fear than in previous years. This is because America the land of the free has now become America the land with restrictions to those it doesn’t deem worthy. To believe that getting a documented status to solve this issue today is simple is to not take into consideration the process of getting a green card. Those who have welath can get a green card, but those who come to America to seek oportunities often do so because of the hardships they face in their home countries as is seen by the film  The Other Side of Immigration directed by Roy Germano. These individuals who have been denied First Amendment implications will suffer more than they’ve previously suffered because of the growth of racial discrimination. The implications to their voice is monumental. I’ve grown up my entire time around communities with a largely mexican population. Jobs which are not taken by the American lower class are often taken by Mexican immigrants such as street ice cream vendors(“paleteros”). When I was six years old one of the paleteros was doing the same thing he always did: selling ice cream. Out of nowhere, a group of individuals come up in their bikes, and start throwing around the ice cream he bought to make a living out of, and meanwhile no one did anything to help the man while he tried to run after the thieves who were stealing his cart. He couldn’t reach them, and ended up crying in the middle of the street out of despair. Did he file a theft claim?  He didn’t because there is a fear in undocumented immigrants that they have no rights, and that if they approach any government officials they’ll immediately be deported. This was fourteen years ago, and the Trump Effect hadn’t taken any effect yet. Therefore, this undocumented immigrants groups have been and are exploited in many occasions while no evidence is shown of the events due to fear of their status.This is why Freedom of Speech should be given to this undocumented immigrants with susbstantial ties to the U.S. because many times when undocumented immigrants decide to state a claim towards authorities they are already left at a vulnerable position.

There is an urgency to this issue today because of an unexperienced political President, and his choice of cabinet members which makes this topic show its urgency. Most of his cabinet members lack a sense of expertise in political affairs with regards to 10 members specifically: Rex W. Tillerson(State), Scott Pruitt(E.R.A.), Linda McMahon(small business), Wilbur Ross(commerce), Rick Perry(energy), Ben Carson(Housing), Stephen K.Bannon(Chief Strategist), Jared Kushner(Senior Advisor/Husband of Ivanka Trump), Kellyanne Conway(Counselor), and Carl Icann(Regulatory Czar). Two other members are qualified for the position, but carry heavily racist undertones which pose a threat to this issue if undocumented immigrants are regarded to hold no rights under the First Amendment Constitution during Donald Trump’s Presidency. These members include: John F. Kelly(Homeland Security), and Jeff Sessions(Attorney General). Therefore, Trump’s Presidential chosen cabinet out of twenty eight carries twelf inexperience political individuals, some big time money moguls, or with regards to immigration: individuals who openly express themselves with racist undertones. Because of his cabinet picking, and with regards to his plans of mass deportations and the increase of racial discirimination incidents occurring in Trump’s first one hundred days in office it is essential to address this question of whether undocumented immigrants with substantial ties to the U.S. fit into the description of “the people” which the First Amendment address.

Most of us who grew up in largely undocumented immigrant communities have seen the implications of Donald Trump’s presidency. You may know a Jose from down the street who was deported because ICE detained him while on his way to work at a revision point, or Maria who was detained on her way to pick up her kids from school. Therefore, to give these groups a voice would mean to allow them to hold protests, to fight against injustice, and to not be afraid to file claims to police officials. President Trump’s proposed movement, “VOICE,” Victims of Immigration Crime Engagement, particularly targets undocumented immigrants as all being criminals while its primary purpose is to promote information about crimes commited by immigrants not excluding Green Card Holders and Visa holders even though undocumented immigrants are less likely to commit a crime than naturalized citizens. The Hufftington Post recently stated how this movement would, “create a sense of crisis across communities that are not even impacted by national immigration policy.” This movements aim is purely to limit the voice of undocumented immigrants even further while denying them First Amendment rights under “the people,” and in an ironic way mocking this fundamental human right by naming the program, “VOICE,” which they do not hold.

“There really can be no peace without justice. There can be no justice without truth. And there can be no truth, unless someone rises us to tell you the truth”(Louis Farrakhan). With this implication towards undocumented immigrant’s voice regarding injustice there will be a preconceived notion about their truth leading to an impact by political affairs affecting their social life’s. Donald Trump’s new appointed Justice, Neil Gorsuch who is 40 years old and will replace Antonin Scalia, will ultimately decide the implications of the political change which will affect our societies. Neil Gorsuch is heavily Originalist with a strict view on the constitution as stable from the time of its enactment rather than a guiding changing document.He does not only hold large implications towards legal issues of immigration, including the case of Hernandez v. Meza which is scheduled for a rehearing once Gorsuch is officially appointed to court in April, but also holds power in issues involving womens reproductive rights, issues regarding housing, and transgender rights to certain bathrooms. If his decision states in anyway that undocumented immigrants hold no constitutional rights under the First Amendment, or that they are not entitled to a Court hearing, which shouldn’t occur according to Turner v. Williams(1904) because they are still entitled to the Due Process law under the Constitution, then this would have impacted previous court cases holding similar court standings such as that of Anastacio Hernandez in 2010 before the recent change in events of the case.

The case of Hernandez v. Meza with regards to the death of a Mexican boy, age 15, accounts family being entitled to a court hearing which previously dismissed the claims against all defendants. However, a panel of the Fifth Circuit judges reinstated the action against Mesa, stating the family was entitled to a trial, and that the killing of the boy amounted to a violation of the Due Process Clause in the Fifth Amendment which states that no one shall be deprived of life, liberty or property. By the court’s initial dismissal of the case, a conflicting view is regarded with the First Amendment rights, and who this legal statement entitles. This is because of the court’s initial hesitance to accepting the case hearing. The First Amendment states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Additionally, the Fifth Amendment states that no person shall be deprived of life, liberty, and property. For this instance, I would like to tie the connection between the First and Fifth Amendment for which they both address an individual and community connection with a multiple set of “person(s)” makes up part of “the people,” and who these rights are meant for. This urges a response with regards to the problem of court cases involving undocumented immigrants in the U.S. with substantial ties, and freedom of speech in its necessity towards protecting inequality, corruption, racism, and discrimination.

The implication of Sergio Hernandez’s case would’ve impacted cases such as Anastacio Hernandez’s because both cases took place at the Mexican Border, and both held strong implications towards First Amendment rights to injustice done from racial discrimination. The difference between both cases, however, is that Anastacio Hernandez held substantial connections to the United States, and had been working in the U.S. for the past ten to fifteen years clearly showing economical, and susbstantial ties to the U.S. with regards to holding a family here showing under Verdugo-Urquidez v.Supreme Court that he held substantial ties in the U.S to deserve First Amendment rights. Anastacio Hernandez had pleaded with border patrol officials to “stop,” tasing him and held little resistance according to camara footage of the event. This instance shows an implication of the impact of restricting undocument immigrants rights to Freedom of Speech in the form of court cases looking the other way despite camara footage showing a clear racial discrimination implication while the ofendent doesn’t show any aggresive response apart from asking government officials to “stop.” The government also tried at one point to destroy this evidence which shows a violation of the First Amendment because the government tried to attack forms of expression with the intent to censor evidence to their benefit.

Therefore, my claim in the case of Sergio Hernandez, and his implications to Freedom of Speech while being able to take a border patrol agent to the Supreme Court arises the question of his substantial ties to the U.S. If his case is taken into the Supreme Court then he will have obtained First Amendment rights even though he holds no substantial ties to the U.S. in any form which is shown with his lack of residency in the country at all, or in an economical contributing form. Turner v. Williams(1904)concluded that “an excludable alien is not entitled to First Amendment rights because [he] does not become one of the people to whom these things are secured by our Constitution.” To say that a member who holds no substantial ties to the U.S. in any form, including economical ties or family ties, holds First Amendment rights in the U.S. but not undocumented immigrants is to say that undocumented immigrants, although, contributing to the nation in an economic form, and residing in the nation while following the laws, with the exclusion of their illegal entrance to the U.S., are not of priority even though they have helped shape the nation in economical, and labor forms. Therefore, how is it fair for undocumented immigrants to have no regard as being part of “the people” which the U.S. includes in the First Amendment rather than someone who holds no ties to the U.S. Anastacio Hernandez’s case should’ve been revisited allowing him to obtain First Amendment rights, and point out the injustice of the case.

This issue with regards to undocumented immigrants, and their rights under the phrase “the people” has been addressed before with cases such as: Turner v. Williams(1904), United States v. Verdugo, Heller(2008), Mariano Meza(2015), and INS vs. Lopez-Mendoza(1984); however, the importance of this issue today is because of the Department of Justice’s statement in Pineda Cruz v. Thompson(2015) claimed that Undocumented immigrants hold no constitutional rights under the First Amendment because they are not part of “the people” which the Constitution intended to protect. This adds on to the Presidency of Donald Trump, and his increased policies towards undocumented immigrants.

Therefore, I believe that there should be a legislative comprehensive immigration reform created in order to address this issue, and give individuals with substantial ties to the U.S. rights as part of “the people” in the First Amendment. This I believe, would be the most effective method to address this problem because by making the proposal a legislative comprehensive immigration reform you would allow states the opoortunity to implement such a decision if they see this issue to benefit their country, or to help their communities. Additionally, it would allow for those states opposing this reform to disregard its implications, and not address this issue. In this way, I believe states with a majority of immigrant influx would be lenient to this proposal. By creating a legislative comprehensive reform it would also allow a consistency of interpretation because of similar laws being created in the states, and social responce to the reform. However, with a proposal towards a national law or national comprehensive immigration reform this would create a new difficulty for lawyer and judges to interpret with new and unfamiliar concepts which could be interpreted in a variety of ways, according to Steven J. Heymen. This proposal for a national law would then reach no conclusion with regards to the a consistency of interpreting the law seeing as how every state varies in social norms, and the feelings towards immigration are susbstantially different in states like: California, and Arizona. On a different scale, to propose an amendment to the Constitution in regards to this issue would be futile, and would not be considered by law officials at all because of the current issue regarding immigration, and the vast majority of the House of Representitives being in power which would limit any sort of national passage of an immigration reform. However, even if an amendment was passed this would guarantee nothing because if you look at the Woman Movement, and their acheivement of the 19th Amendment(1920) leading to their voting rights because they wanted an inclusion in the Constitutional in the Equal Protection Clause mentioned in the 14th Amendment, but they did not gain this protection until 1971 with the case of Reed v. Reed. Additionally, African American’s wanted to gain a voice by the 15th Amendment(1870), but they did not gain an end to segregation, or obtain a sense of equality until the 1960s. Therefore, an amendment would not be suitable to address this issue today because it would be interpreted in a variety of ways, and the initial purpose for its creation may not be addressed for a couple of year until there is traces of inequality long engraved in our social and political communities. With regards to a social and legal throey being proposed towards this issue I believe we could follow this proposal; however, we shouldn’t do this because that is what our society has been doing or the past fifty or so years when Mexican Immigration began to rise, and even with mass immigrant numbers influx from other parts of the world. To propose a theory would not address the urgency of this issue in today’s society, but rather address it, and leave the issue forgotten behind closed books until there is a serious threat to safety, and taking advantage of an undocumented person while still claiming the Constitution protect human autonomy, and dignity with regards to “the people,” but not giving rights to those it reaps economic benefits from.

In the proposal for such a legislative comprehensive immigration reform bill it will be essential to address this issue of who “the people” entitles, and ideally it would involve undocumented immigrants with regardst to the first ammendment who hold substantial ties to the U.S. and economically help the United States. This proposal would; however, not include criminals, apart from their first and only misdemeanor being that they entered the U.S. illegally which I do not state them as criminals in this sense, who have been arrested with a series of felonies. I am not stating that this proposal is perfect, or complete. I am stating, however, that if a legislative comprehensive reform bill where to be enacted this issue should be regarded and addressed. I also believe that a legislative comprehensive reform bill would be the best option to give this problem a solution while maximizing state responses to such a proposal. This issue is of importance, particularly today because of President Donald Trump’s administration, and the only response to combat against Presidential and Federal power is enacting a state power, by the use of a reform bill which will give each state the freedom to respond to certain proposed categories of this proposal while still being able to deny those they don't agree with. I acknowledge that this proposal isn't perfect; however, it is a starting point towards addressing this issue which should be held at importance at a national level, but to not complicate things further address this issue at a legislative level to not disengage to the initial purpose of the legislative immigration reform bill in terms that each state will hold acceptable.