Shakira, of Colombian and Portuguese citizenship, was interviewed on CNN for her thoughts on the Arizona immigration issue. She dropped the following statement on Constitutional law:
Let’s get this out of the way: Wrong. Very wrong. Really, really wrong.
How Is Shakira Wrong ? (Simplified):
The Constitution is a document that frames and limits the United States Federal Government. Over time many portions of the Constitution have been applied to the States.
The Constitution specifies existence of U.S. citizenship. The existence of this stipulation creates a division between citizens and non-citizens. A difference exists.
Amendment 14 Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.
Citizenship involves a degree of ownership of the government, including the protection and reservation of specific rights. Notice: “No State shall make or enforce any law with shall abridge the privileges or immunities of citizens“. The Constitution is specifically protecting the privileges or immunities of citizens.
What of non-citizens? Notice: “nor shall any State deprive […] without due process of law; nor deny to any person […] the equal protection of the laws.” All consideration of all people is within the context of the law. What does Federal law say? Enter the country legally. An illegal immigrant is, by definition, not abiding by U.S. law. An illegal immigrant is, by definition, violating U.S. law. Does the Constitution protect their rights? Certainly. How? By the application of the law.
The law exists in unity. Protections and limitations work in unity. Therefore, both the protections and the limitations of the law apply to illegal immigrants on U.S. soil (and therefore under the jurisdiction of the Constitution). They are alive on U.S. soil, so their rights are protected by the law. Jointly, they violate the limitations of the law, so they are punished by the law.
Why Is Shakira Wrong? (Simplified):
Shakira’s concept of constitutional theory is very alien for many of us. There’s a reason for that: she’s, legally, an alien. Shakira is Colombian. Latin American constitutional theory is very different from United States constitutional theory! In the U.S., the Constitution is a document that frames and limits our government and our federal government’s laws. The Constitution is the foundation for the law. The Latin American standard is different: in Latin American nations, the constitutions (remember, simplifying!) are the law! The U.S. Constitution is a stable document that is difficult to textually change but undergoes detailed interpretive shifts. Latin American constitutions are unstable documents that are much simpler to textually change. Regime changes are often paired with changes, and often full-scale replacements, of constitutional documents. A Latin American unversed in U.S. constitutional theory cannot be expected to have a solid understanding of the degree of difference. Frankly, however, all that does is provide a bit of context for Shakira’s blatant ignorance.
Reality: Shakira’s country, Colombia, allows U.S. citizens to enter Colombia and stay for 60 days as a tourist. If a U.S. citizen stays for longer than 60 days without permission then that U.S. citizen is fined and prohibited from leaving Colombia until the fine is paid. Why is Shakira demanding that United States law not apply to immigrants without also demanding that her own country lift restrictions on immigrants?