Shakira: How & Why She’s So Very Wrong

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?

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43 Responses to “Shakira: How & Why She’s So Very Wrong”

  1. Tim Mulligan May 1, 2010 at 4:58 pm #

    Very interesting blog on issues of constitutional law and theory.

  2. Lucas De Lima May 1, 2010 at 5:13 pm #

    i guess that this means, as giorgio agamben has suggested, that the illegal immigrant is no longer human.

  3. Lucas De Lima May 1, 2010 at 5:13 pm #

    i.e. “”I just met with some families and women who have been subjected to domestic violence, and they are so concerned,” the singer said. “They’re going to live in fear to call the police or to report a crime that has been inflicted to them. They’re trying to protect their kids and their own families from abusers. and now they’re going to have to protect themselves from the government.” – Shakira

  4. Tim Mulligan May 1, 2010 at 5:13 pm #

    The 14th amendment, by its express terms (and I am a textualist), protects “persons.” Undocumented aliens are certainly persons. Therefore, they are entitled to legal protections. And the Supreme Court has held that alienage is a suspect classification under the law of equal protection.

  5. Lorien Johnson May 1, 2010 at 5:13 pm #

    Lucas: To the contrary – I am stating that an illegal immigrant cannot claim the protections of the law without accepting the law in its entirety. None of us can pick and choose. If one wants to claim protection under the law, then one must also abide by the limitation of the law.

  6. Lorien Johnson May 1, 2010 at 5:13 pm #

    Regarding Shakira’s quote re: fear: How is that any different from anywhere else in the country? If a person is breaking the law, then obviously they will be afraid to contact the enforcers of the law. The point is again drawn to the fact that none of us can demand that one part of the law applies but another part does not. The law functions in unity.

  7. Tim Mulligan May 1, 2010 at 5:57 pm #

    But the Supreme Court has never held that the protections afforded to legal aliens, are also required for undocumented aliens, many of whom entered the country illegally.

  8. Lorien Johnson May 1, 2010 at 7:06 pm #

    Tim: to clarify, are you observing that the SC has not granted protections to undocumented aliens? If so, then yes. That’s where the principle of unity and balance comes into play. If someone is rejecting the law, then the law cannot and protect them to the same degree to which it protects those who are abiding by the law.

    This may be relevant to your concerns, Lucas: human rights, of course, supersede all laws and lack thereof. An officer cannot, for example, initiate undue violent force against someone who is illegal. The illegal person can be detain, arrested, deported, etc., but cannot be murdered, raped, abused, etc. The officer is still subject to the behavioral limitations of U.S. law (and simple moral law). Civil rights, however, function differently.

  9. Tim Mulligan May 1, 2010 at 7:58 pm #

    That is a very good point Lorien. To clarify, I am merely (as I’m trained to do, and the only thing I’m really qualified to do), making legal observations about the current state of the law…. As a proponent of states’ rights, I would be hesitant to conclude that the Arizona law violates the rights of illegal aliens. Cutting in line is just not fair to those who are not lawbreakers.

  10. Lorien Johnson May 1, 2010 at 9:01 pm #

    Agreed. What I find especially fascinating about the Arizona law is how remarkably in line it is with federal law! This is not a case of a state violating federal law… Arizona is a) reiterating federal law, and b) empowering itself to uphold federal law.

  11. Lucas De Lima May 1, 2010 at 10:07 pm #

    i’m complicating your statement by evoking the notion of a state of exception in which the law creates conditions where it exempts itself from operating.

  12. Tim Mulligan May 1, 2010 at 11:05 pm #

    Very good observations Laurien. While the federal government, the Supreme Court has held, cannot be commandeered into enforcing federal law, there is no Supreme Court precedent, AFAIK, that prohibits a state from adopting federal law as state law. It happens every day of the week, in fact. I could cite instances, if need be.

  13. Lucas De Lima May 2, 2010 at 12:22 am #

    to continue, like shakira, i know next to nothing about the US constitution, but it seems pretty clear here that the civil liberties of anyone who looks like an undocumented immigrant (and may or not be) will be violated. the law thus maintains itself by creating a space/state of exception.

  14. Lorien Johnson May 2, 2010 at 12:59 am #

    Lucas: Okay, fair enough. What you’re asking for, however, would require a constitutional amendment that would a) nullify the majority of the 14th amendment and b) create extremely complicated questions of when a law should apply and when a law should not.

    Hypothetical: The Constitution is amended to allow some laws to be exempted/suspended in some situations. Does it not follow that if laws can be suspended then rights can also be suspended?

    I accept the rule of law in so far as it protects my rights. The U.S. Constitution and the legal history of the U.S. is unique and meaningful precisely because it demands equality before the law. The laws apply to all people equally; the protections apply to all people equally. I reject any change to the Constitution (or its interpretation) that endangers my rights.

    Recognizing your perspective as an individual with dual-citizenship and a heritage in South America, I ask that you consider the final question from my article:

    Is it not just that those who demand that America suspend its immigration laws also demand that all other countries suspend their immigration laws?

  15. Tim Mulligan May 2, 2010 at 2:14 am #

    To be sure, Mr. De Lima, as far as profiling is concerned, there is a considerable risk of a successful 4th amendment challenge (illegal search and seizure) to the Arizona law. It all depends on Justice Kennedy, the swing vote. And he’s fickle, but has, in other cases, been a strong supporter of states’ rights. But he’s also a strong supporter of equal protection and due process.

  16. Lorien Johnson May 2, 2010 at 3:06 am #

    oops, posted before I saw your second comment, Luc.
    What civil liberties are endangered? One must be stopped for a legal reason (ran a red light, smacked someone upside the head, etc) before one’s immigration status can be investigated. Reasonable suspicion empowers, in this law, *only* if someone is legally stopped for another reason. The law does *not* empower people to be stopped simply to investigate immigration status.

    Now, personally? and ideally? I dislike all documentation. I dislike having a driver’s license. I actively oppose having a social security card. I actively oppose a national ID card. I will spend my life’s endeavors opposing these things. Yet, I know something of your politics, friend! You actively encourage policies that require documentation! Taxation and welfare require such things!

    Would it not be superior that we work towards a completely voluntary society in which such documentation is not required in the first place?

  17. Lucas De Lima May 2, 2010 at 3:58 am #

    i don’t think the US should suspend its immigration laws–just reform them to provide a realistic path to citizenship and legal status. especially when it’s the US that has sabotaged and exploited the economies of the southern hemisphere and elsewhere for decades. not to mention the extent to which the US depends on its undocumented workers (hence bush’s big business interest in reforming immigration laws).

    as per the ACLU in arizona, “There are a number of serious constitutional problems with the law, the groups say. It violates the supremacy clause by interfering with federal immigration power and authority. The law also unlawfully invites racial profiling against Latinos and other people of color.”

    i’m not at all bothered by documentation if it means a strong social safety net (and not the beginnings of totalitarianism, which in the US in particular needs to be distinguished from socialism).

  18. Lucas De Lima May 2, 2010 at 4:59 am #

    more on the state of exception as per agamben, which i think would interest both you, lorien, and mr. mulligan:

    http://www.press.uchicago.edu/Misc/Chicago/009254.html

  19. Lorien Johnson May 2, 2010 at 9:53 am #

    a) I’m going to ignore, mostly, the exploitation accusation. That’s mostly bull… especially for the past couple decades. I live here; U.S. attempts aid and local governments want the aid but not the strings. Too bad.

    b) Totalitarianism and socialism cannot be separated. Socialism *is* a totalitarian system. Aid = Strings = Control.

    c) The ACLU is wrong: the supremacy clause is not violated. Nothing in the AZ law conflicts with federal law. In fact, most of the law is a reiteration of federal law. All it does it empower police officers to assist in the enforcement of the federal law… something the federal government is *not* doing. The state has the right to defend itself.

    d) MOST IMPORTANT: A goal for any humanitarian looking at this situation is to develop a fair and just way to help the illegal immigrants. You and I share a motivation here – to make their lives better. What you propose is the WORST possible solution for them. Why?

    Undocumented worker comes to the U.S. because they can pick up lots of work for illegally low wages in the States (but wages that are competitively high for their own country). IF those workers become documented/legal, then they are incorporated into the socialist system… minimum wage, social security, healthcare. They are *no longer* able to get those illegally law wages. They join the masses of unemployed.

    The issue of the jobs available for the illegal immigrants is not how it is frequently painted – ie. that Americans aren’t willing to take the jobs. People will do whatever they can in order to feed their babies. Rather, the issue is one of regulation. Employers cannot afford to pay federal and state regulated minimum wages. They cannot afford to pay enough to cover social security. They certainly will not be able to pay health insurance costs. These socialist regulations PREVENT legal citizens/workers/residents from getting low-level jobs. This includes apprenticeships! Many tradesmen would be happy to take on an apprentice; provide room/board (which is cheap) to supplement low but affordable wages, while training the worker the trade. Such a system is virtually impossible under the weight of regulation demanded by a socialist state.

  20. R Steven Johnson May 2, 2010 at 9:53 am #

    Lucas said:” i guess that this means, as giorgio agamben has suggested, that the illegal immigrant is no longer human.”
    No, it means they are criminals, and should be treated as such, under the law.

  21. Tim Mulligan May 2, 2010 at 9:53 am #

    Some businesses may depend on immigrant workers. But undocumented workers don’t pay income taxes.

  22. Lucas De Lima May 2, 2010 at 11:08 am #

    1) no level of border enforcement will completely stop illegal immigration. isn't it a little ridiculous to use a phrase like "de facto invasion" in this situation. what are mexicans attacking the US with? enchiladas? telenovelas?

    2) i respecfully disagree and attribute your comment to dehistoricization.

    3) NAFTA is horrible. free trade is not fair trade.

    4) the EU, Canada, Australia, etc.

  23. Lucas De Lima May 2, 2010 at 11:08 am #

    http://www.commondreams.org/scriptfiles/views03/1

    In reality, for historical and geopolitical reasons, what Third World countries are "best at" is having their natural resources extracted and exported to the industrialized nations (which in turn sell back manufactured products at a high cost) and having their populations exploited for cheap labor.

    […]

    The World Trade Organization's treaties and the proposed Free Trade Area of the Americas are characterized by undemocratic processes, such as secret and semisecret pre-agreements and unrealistic deadlines, and economic blackmail including threats to withhold the International Monetary Fund and World Bank funding upon which the weaker nations' governments have become dependent. Rapidly expanding U.S. military presence worldwide only serves to reinforce the economic hegemony.

  24. R Steven Johnson May 2, 2010 at 11:08 am #

    Lucas:

    1) no level of border enforcement will completely stop illegal immigration. isn't it a little ridiculous to use a phrase like "de facto invasion" in this situation. what are mexicans attacking the US with? enchiladas? telenovelas?

    1) The Iron Curtain disproves your statement. Without resorting to such drastic measures, simply enforcing the laws against hiring illegals, deporting them when detected and enforcing the borders will eventually do the job.

    2) i respecfully disagree and attribute your comment to dehistoricization.

    2) You may do so if you wish, it reveals a willingness to disbelieve, ala the Red Queen.

    3) NAFTA is horrible. free trade is not fair trade…. See More

    4) I agree it is horrible. I have helped employees through the crisis when their jobs are shipped South. All the counseling and training we provided didn't change the fact that their job had been moved to the DR (in that case.). Fact is that Dodge trucks aren't made in Detroit anymore, they are built in Mexico City.
    As for the current PC fad of "Fair Trade", please!

    4) the EU, Canada, Australia, etc.

    How many illegals does Australia get?
    Canada?
    We train folks trying to get visas to Canada. They have to pass an advanced English class to even be considered.
    As for the EU, sorry. Spain deported 50,000+ Bolivians a year or so ago. It was devastating to the economy here, with more unemployed workers and less money being sent from overseas workers.
    30 minutes ago

  25. R Steven Johnson May 2, 2010 at 11:08 am #

    Lucas:
    "In reality, for historical and geopolitical reasons, what Third World countries are "best at" is having their natural resources extracted and exported to the industrialized nations (which in turn sell back manufactured products at a high cost) and having their populations exploited for cheap labor."

    What exactly do "developing nations" have to offer, except resources and labor?
    My host country, is rich with natural resources, tin, silver, natural gas, oil and now lithium. For over a hundred years, "evil capitalists" have poured in billions of capital investment, foreign aid and support. The "democratic" governments that ran the country from 1980 till recently blocked "trickle down" economics so the people gained little, leaving them ripe for communistic propaganda. Now they are seeing how that is working out.
    However, the point germane to this discussion is that the nations of South America have everything they need to create free, prosperous nations that offer opportunity to all. Except the will and ethic to do so.

  26. R Steven Johnson May 2, 2010 at 11:08 am #

    Perhaps nations that don't have running water for their citizens shouldn't spend $30 million on luxury jets for politicians, or nations that can't keep the lights on shouldn't spend billions on Russian tanks for offensive warfare?
    Or to paraphrase Billy Connely, before Iran builds a nuke they should get working toilets?

  27. R Steven Johnson May 2, 2010 at 11:59 am #

    Lucas said: “i don’t think the US should suspend its immigration laws–just reform them to provide a realistic path to citizenship and legal status.”
    There is a clear and direct path to legal status (workers) and citizenship. It is clearly defined by the laws of the United States.
    The path just does not begin by crossing our border illegally and working illegally in our country.
    You are demanding that we first allow our laws to be flaunted, and then reward the lawbreakers!

  28. R Steven Johnson May 2, 2010 at 1:04 pm #

    My family are close to completing the process of becoming permanent residents of a Latin American country. It has taken 4 years and around $10,000 US dollars. Note, we are not citizens, nor are we even allowed to work. It has taken this long and all that money to simply be allowed to be here, bring in foreign dollars and serve the local people. We are not entitled to any social services, we are simply non-citizen residents. No forms were printed in my language, no translators were provided. I am expected to learn the language of my host country, obey the laws, and behave myself as a good guest.
    If I came to my host country as you expect people to be allowed to in the States i.e. entering illegally, demanding to work without a permit, demanding social services, free health care, free education (IN MY LANGUAGE) for my kids, even street signs and all government offices be equipped to support my language, then I would be in jail, once they stopped laughing at me. Then, after I paid my way out of debtors prison, I’d be deported. And I would deserve it!

  29. Tim Mulligan May 2, 2010 at 1:58 pm #

    I had to get a replacement visa in Guatemala 1989, as my passport was stolen. I spent days standing in lines at the officina de migración. Little did I know that I had to “grease the gears” of the bureaucracy a little.

  30. Lucas De Lima May 2, 2010 at 3:06 pm #

    i could point you to a number of sources on the history of Friedman-US-backed coups in Latin America, such as Naomi Klein’s Disaster Capitalism. and Eduardo Galleano’s Open Veins of Latin America: Five Centuries of the Pillage of a Continent. but since Haiti is also in the region, here is an article: http://www.huffingtonpost.com/bill-quigley/why-the-us-owes-haiti-bil_b_426260.html

    i’ll leave it up to you, as an american, to tell a swede they live in a totalitarian state.

    i don’t think it’s true that employers can’t afford to pay people more. “As of 2006, the United States had one of the highest levels of income inequality, as measured through the Gini index, among high income countries, comparable to that of some middle income countries such as Russia or Turkey…”

    obviously i think the government should be providing health care, as well as raising taxes on wealthy people and big businesses. but of course you already anticipated my saying this.

  31. Lucas De Lima May 2, 2010 at 3:08 pm #

    steven johnson, in light of your lack of compassion, i suggest you also check out those sources for a history of the US’ own “criminal” activities which exacerbated poverty in the global south and drove immigration.

  32. R Steven Johnson May 2, 2010 at 3:08 pm #

    So sad that you have to resort to personal attacks. Perhaps it is my “lack of compassion” that has led me to move my family to South America to serve the people here. My compassion is demonstrated by my life, not cheap words.
    If you want to discuss the events of 150 years ago that led to the invasion (and defeat) of Mexico, feel free, though what relevance that has to today, I can’t imagine.
    If you want to discuss the legends of American involvement in South American politics of the last century, feel free. Now that I live here, my research is leading me to believe that at least some of that is myth. And for what was reality, socialist academics delight in taking actions out of context to promote their agenda. People who revise history bore me.
    In the long bloody history of governments, I don’t see many who send their children to shed blood in foreign lands, and ask for nothing but enough land to bury their dead. And since Nam, we don’t even ask for that. The USA stands unique in the history of the world.
    At the same time tin pot Latin American communist dictators are publicly denouncing the United States of America, their officials are begging at the hind tit of the US for more money, for highways, public utilities, and most importantly, their bank accounts in Switzerland and the Caymans.
    In any case, for you to defend someone’s illegal acts because “the US did bad things somewhere else” is a bit lame, don’t you think?

  33. Lucas De Lima May 2, 2010 at 3:08 pm #

    actually, what i’m asking for is that the US deal with illegal immigration for the reality that it is. people aren’t going to stop coming here until a) US jobs dry up and b) other countries’ economies improve (see the recent reverse trends in Brazilian immigration).

    i’m sorry, steven and lorien, i really find your anecdotal evidence about immigrating to south america problematic. you are first world citizens. you moved to Bolivia by choice, not because of dire financial circumstances at home. your situation is not at all comparable to that of most immigrants in the US.

    the US has done good, even great things for other countries. i’m not denying that. but it’s time we examine the exceptionalism under which the US has operated and, if anything, has revised its own history of empire. so, rather than say that the US needs to defend someone’s illegal acts because it did “bad things somewhere else,” what i’m actually saying is that the US needs to hold itself accountable for the conditions it has created/exacerbated in other countries. and i’m not talking about the mexican war. the sources i pointed you to refer to the 70s, 80s, 90s, etc. i guess it’s your loss if you are not willing to look at facts.

    my intention was not to personally attack you. if anything, i was bringing to light the sentiments underpinning our different views. maybe i should have said that i think your compassion is misdirected.

  34. R Steven Johnson May 2, 2010 at 3:08 pm #

    1) The reality that if the US enforced it’s border, as constitutionally required, this would not be such a problem. If the US even enforced its border as well as Mexico defends its southern border, the problem would be much less an issue. The laws enacted by Arizona are only reasonable, for any nation to defend itself from de facto invasion. It must also be recognized that Mexico encourages and supports illegal immigration, politically and logistically.
    2) The dire financial circumstances in Latin America are primarily due to internal government corruption, not foreign intervention.
    3) Acknowledging Mexico as the worst offender of promoting illegal immigration to the US, one must ask what atrocities have we done them? Specifically in the last few decades, we have done wonders for that nation, especially with NAFTA, where we wholesale shifted American jobs south of the border. Our government even gave the Mexican army .50 caliber rifles that they could sell to the drug lords so our own president could then blame Mexican drug violence on American guns!
    If the Mexican government did a half way decent job, that country would be a paradise. Instead…it is what it is.

  35. R Steven Johnson May 2, 2010 at 3:08 pm #

    Challenge:
    Name one nation on earth that does as much for immigrants, legal or otherwise, as the USA?

  36. Tim Mulligan May 2, 2010 at 3:08 pm #

    Canada.

  37. Lucas De Lima May 2, 2010 at 5:08 pm #

    NAFTA is bad for all, but its repercussions are especially severe in latin america.

    Spain provided amnesty to illegal immigrants a few years ago, which is unthinkable here. also, its still possible for undocumented workers there to get access to health care.

    yes, the developing world is rich in resources, but it needs to to be fairly compensated for those resources. NAFTA does not allow this the way buying fair trade coffee (a "PC" invention in your book) does.

    i don't know if it's willful ignorance or xenophobia, but your insistence on latin america's lack of "will and ethic" is offensive to me as a brazilian. again, please check your history on the prosperity of chile, argentina, brazil, and uruguay before the US started to meddle. yes, there is a lot of corruption down there, but its only a small piece of the puzzle.

  38. Lucas De Lima May 2, 2010 at 5:19 pm #

    i might add that the last US administration towers above all current latin american governments in its level of corruption and lack of transparency.

  39. R Steven Johnson May 3, 2010 at 5:08 am #

    Well, at least we agree on NAFTA.
    I am not aware of Spain offering amnesty in the past, but apparently they learned the lesson that such bad policies only increase illegal immigration, based on how they have treated the Bolivian workers in the last three years.

  40. R Steven Johnson May 3, 2010 at 9:18 am #

    Sorry, the repression of a free press referred to current regimes. We could add support for terrorism, government supported drug production and trafficking, and a host of other major and minor crimes against humanity and liberty.

    We get no where because you no one will address the 4 basic questions listed above. Until one can justify violating America's sovereignty, we indeed get nowhere.

  41. R Steven Johnson May 3, 2010 at 10:06 am #

    This statement is so ludicrous as to defy description. Compared to whom? Cuba? Venezuela? Chile? The history of mass murder, “disappearances” , repression of the press goes on and on. This is fallacious rhetoric at its worst.

  42. R Steven Johnson May 3, 2010 at 11:09 am #

    The basic questions have not been addressed:
    1) Why should any nation tolerate invaders who defy its laws?
    2) Why should any nation provide social services to invaders which are not even available to its own citizens?
    3) Why should any nation allow its education, health and legal systems to be bankrupted by invaders?
    4) Why should any nation provide priority status to invaders, placing them ahead of honest people who have followed the established legal path to immigration and citizenship?

  43. Lucas De Lima May 3, 2010 at 12:02 pm #

    i said current latin american governments, not past ones.

    i think i’ve said enough on this topic–the US is not just “any nation,” as you yourself have suggested–and get the feeling that our dialogue is not really getting anywhere.

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