How Far Can Arizona Secede?

Jose Olivas holds a drawing of a baby as he protests against Arizona’s Senate bill 1308 and 1309 outside Arizona’s Capitol building in Phoenix, Arizona, 7 February 2011. The two bills seek to overrule the 14th amendment of the US constitution by denying American citizenship to children born in the United States to undocumented immigrants.

This succinctly defines the human rights situation in Arizona. Arizona is a place where conservative state lawmakers do not appear to know the meaning of: “inalienable rights” – seemingly hellbent on revoking not just the 20th, but also, the 19th centuries. They seem to believe that if a majority of them agree to anything – including the taking away of peoples’ basic human rights – that their votes, along with their governor’s signature, constitutes a law.

Those opposed to their concocted laws have turned to US courts for relief. And now, as state legislators continue on their seeming path to secede from the Union, the opposition is now also examining international courts and forums for possible relief. Also being explored is the possible use of the 1848 Treaty of Guadalupe-Hidalgo in this dispute. This treaty ended the war between the United States and Mexico, with the Mexican nation ceding, under threat of force, half its territory. Ironically, it is also a treaty that purportedly safeguards the rights of Mexicans living in what is today the United States.

This path of examining the treaty and international law has been triggered by the states new racial profiling SB 1070 and the anti-ethnic studies HB 2281 “laws”. Same with new proposed laws: HB 2382/SB 1097 – which would, in effect, force children to identify the legal status of their parents; and HB 2561/SB 1308 and HB 2562/SB1309, which would deny birthright citizenship to children and that would nullify the 14th amendment to the US constitution.

The stagecoach has, apparently, yet to arrive in Phoenix with the memo that informs Arizonans that all human beings are born with rights, as opposed to being granted them by governments, and that no government (local, state or federal) can take them away. That’s the meaning of inalienable.

Actually, the stagecoach finally appears to have arrived this year because the state legislature, in a tragicomic manner, is now attempting to cover its behind. First, a proposed Arizona law, SCR 1010 (pdf), calls for Arizona to be exempt from international law. Now, Arizona legislators are proposing yet another law, SB 1443; it would enable the state legislature to ignore federal law – that is, to ignore the “supremacy clause” of the US constitution.

But Arizona politicians, beware. The community of nations anticipated such behaviour from rogue governments; through the years, the United Nations has created and developed treaties and conventions that protect the rights of all human beings. So has the Organisation of American States.

Aside from all the rogue gun laws, much of the hate legislation that has been advanced in the state legislature, with the governor’s signature, has focused on one particular group: Mexicans/migrants/indigenous peoples. Most of these pieces of legislation appear to be in clear violation of virtually all international human rights treaties and conventions. The operative word is “appear” – as legal research has now begun to examine the feasibility of bringing a court case or cases on this question before the OAS and/or the UN.

This could conceivably result in the opening-up of a second legal front. Both SB 1070 and HB 2281 have already been challenged in court, with good prospects of them eventually being ruled unconstitutional. The HB 2281 case involves a lawsuit by 11 educators against the state, charging that their ability to teach Mexican American studies, which was declared out of compliance on 3 January, has been hampered due to discriminatory treatment by the state. The Tucson Unified School District (TUSD) has until 18 April to comply (with the order to eliminate Mexican American studies). The legal theory for a second legal front (with regard to HB 2281) would involve the fact that virtually all international human rights treaties and conventions protect the right of all peoples to their history, culture, language and education.

Amid these legislative assaults, in perhaps an ironic twist of history, the actual Treaty of Guadalupe is currently on display at the Arizona State Museum in Tucson, offering a stark reminder that all treaties are alive, including this one. Without revealing legal strategy, perhaps at no time has the time been riper than now, to put forth a test case involving this treaty. One element of such a challenge (or related challenges) would involve whether in fact Mexican Americans continue to be protected by this treaty and whether, in fact, Mexican Americans also constitute indigenous peoples.

Tupak Enrique Acosta, a co-founder of Tonatierra in Phoenix, an organisation dedicated to fighting for the rights of indigenous peoples, said he welcomes such a development. To those who would challenge the indigeneity of Mexican Americans (Chicanas/Chicanos), he says: “Bring it on.”

Yet, whether this second legal front, in fact, includes the treaty or not, what the overall moral challenge involves is something even simpler: the right of all peoples to be treated as full human beings and the right to an uncensored education.

ROBERTO RODRIGUEZ, a professor at the University of Arizona, can be reached at: XColumn@gmail.com



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