SB1070: Critical Analysis of the Supreme Court Ruling


(Seattle, WA) The analysts and pundits have spoken and the perspectives outlined run the gamut from far right to far left. Did the Supreme Court ruling last week truly overturn Arizona’s “Show Me Your Papers” law, SB1070? Is the far left correct is asserting that the ruling settled nothing and the police are already running rampant and violating human and civil rights? Or, was it actually a partial but significant victory for anti-immigration cadres since, as some on the far right allege, the notorious §2(B) was left intact and police in Arizona can now go around racially profiling suspected “illegal aliens”?


The truth is much more complicated and nuanced than these extremist sound-bite views.  These are the basic facts of the ruling, as we understand them:

1.    The Supreme Court overturned all provisions of the law that violate the Constitutional principle of Federal preemption, i.e., in this area of law, only the federal government can promulgate laws related to immigration and naturalization. There are absolutely no legal grounds for the assertion of states’ sovereignty or states’ rights in this area of the law.


2.     The Supreme Court did not uphold §2(B). The Court decided to wait until other legal challenges can work their way through the judicial system and then the Justices will reconsider the constitutionality of this most notorious of all the sections of Arizona’s statute. The current legal challenges by MALDEF, ACLU, and other parties are focused on the due process and equal protection issues including discrimination based on racial profiling. Moreover, and perhaps most significantly, the Court also refused to strike down the current lower court injunction that prohibits local and state police from enforcing §2(B), which means that Arizona cannot legally start enforcing the only remaining provision that has not yet been overturned and that would allow police to ask suspected immigrants to prove their legal status.


3.     This means that all the other states that have adopted copycat and even more draconian versions of Arizona’s statute will also have their laws overturned and enjoined from enforcement. This includes Alabama, Georgia, Oklahoma, and all the other states, and municipalities, that have surreptitiously passed anti-immigrant laws and ordinances since roughly 2006. In the coming weeks and months, every single state and local law will also be overturned based on the overarching preemptive force reaffirmed by the Arizona, et al. v. United States ruling.


We remain confident that the Supreme Court will eventually overturn §2(B) as a violation of 14th Amendment guarantees of equal protection and due process. However, we also believe that much more is at stake than the legal niceties of court rulings and juridical arguments.


Instead, the struggle against SB1070 and the myriad copycat laws across the nation involves a clash between civilizations, or perhaps more accurately, between two very different philosophies of what it means to be a civilized society. The struggle also poses fundamental questions about the persisting threats and challenges to the realization of a truly democratic polity and a more fully-realized humane society capable of resisting fascist and authoritarian impulses promulgated by rightwing partisans. 


While enforcement of §2(B) is currently suspended under the standing lower court injuction, we also realize that the police, in Arizona and elsewhere, have long been harassing and persecuting Mexican and other Latina/o workers, regardless of their undocumented, legal, or rightful native-born or naturalized citizen status. 


As we have previously reported, police violence against us is widespread; the police forces in Arizona and elsewhere do not need the law behind them to direct their misguided hatred at our communities. Indeed, they will do so exactly by ignoring the rule of law: So what is in place to keep them from following the established pattern of the past 150+ years? Nothing. They are and have long practiced a state of violence and exception against our people and communities.



Credit: Alexander de Vasos

2(B) or not 2(B): Ending the state of exception?


We begin by reminding our readers and explaining to our new followers the concept of the state of exception. This concept is rooted in the legal theory of a Nazi jurist, Carl Schmitt, who first proposed that the sovereign power (e.g., unitary executive) has the ability to suspend the rule of law to protect the nation state and assure public safety and security.


Schmitt developed this idea in his 1922 book, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität, which was translated and revised in English in the U.S. in 1984 as Political Theology: Four Chapters on the Concept of Sovereignty. Schmitt invoked the German concept of Ausnahmezustand, which can be accurately translated as “state of emergency,” a concept which frees the sovereign from any legal restraints to its power that would normally apply.


Whatever we may think about Schmitt’s role in defining the legal rationale for fascist state formations, we can agree with one of his most profound insights, albeit produced in a moment of regret and existential anguish: After World War II every major Western liberal democracy is faced with the necessity of imposing a permanent state of exception, given the threatening geopolitics of a world polarized between communist and capitalist systems. 


It was Giorgio Agamben who first really successfully brought Schmitt’s work to the attention of North American academics and activists concerned with the protection of civil rights and the extension of “deep” democracy. Agamben’s book, State of Exception(2005), is important because it placed Schmitt’s work in contemporary context and included a fairly precise analysis of the United States after the events of 9/11 and the hasty passage of the Patriot Act a.k.a. Public Law 107-56; 115 Stat. 272 (2001). 

We have previously analyzed these important concepts and publications and invite our readers and new followers to review or revisit (among others) the blog entries for May 20, 2010, which is an extended conversation between Tezozomoc and Devon Peña on applying the state of exception theory to Arizona; May 29, 2010, which explores the concept of the postliberal minimalist state; June 15, 2010 on the authoritarian personality of rightwing partisans; and June 28, 2010, which is a set of reflections on Antonio Negri’s critique of Agamben and what these ideas mean for our understanding of and organizing work in Arizona and beyond. 




Artwork byAdolfo Vásquez Rocc

The lessons on Arizona one can draw from a critical reading of Schmitt via Agamben are clear: The suspension of our Constitutional liberties in Arizona does not need the imprimatur of the Supreme Court for it to occur. The suspension of the rule of law has for too long been a brutal cold hard fact on the ground in 1070 Arizona and wherever states have decided to follow white passions to attack Mexican-origin workers and their families and communities.


What activists on the ground in Arizona are reminding us is that these liberties include the rights of association and movement and not just those individual rights of due process and equal protection. The attacks on freedom of association are not limited to the policies unleashed by the proponents of SB1070 but also those that advocate lawless laws like HB2281, the other draconian and fascist Arizona statute that seeks to ban the teaching of Chicana/o Studies in the public schools.


The telluric rightwing partisans in Arizona and other states are driven not just by ignorance and xenophobia (hatred of the Other), they are driven by a thirst for the reassertion of white (Anglo Saxon) supremacy and the abolition of even the remote possibility of a pluralistic society and multiracial democracy. They fear us because we represent the face of that future.



This means that we must understand how the fate of our polity and the flourishing of our civil rights will not be determined by any future court decisions on §2(B) or other laws or provisions of the law deemed unconstitutional. Those decisions will perhaps create spaces to organize and resist but will certainly not grant us autonomous powers as a working-class multitude.


The important question for us is not §2(B) or not §2(B). The right question is: What will we do? The answer to that question cannot be pre-determined; it is best answered by social movements and the massive mobilizations and new forms of resistance that have always been the only real sources of substantive transformation and structural change in our society.


The real questions then will have to do with determining the most effective organizational forms, terrains of struggle, and strategies for the circulation of struggle to promote the type of process of political recomposition we need to challenge the state of exception and impose our power and impulses for a deep and radical democracy. The real questions are: Will we freely associate and resist? How? Which forms and strategies of resistance will be the most effective at transformation and emancipation?



All of us have been so thoroughly shaken up and overwhelmed by the pervasive suspension of the rule of law and the spread of neofascist sentiments across the general population that we have taken our eyes off the real prize – which is the rebuilding of our own autonomy. We have consistently failed to ask the right questions, which have to do with the nature of partisan power and the strategies and tactics of a legal civil war unleashed by rightwing extremists.


We need to realize that we do not need the imprimatur of the hegemonic rule of law to assert our forms of emergent and immanent constituent power. How could that possibly matter in a state of exception? The sovereign has already dispensed with the rule of law. What we can do is create our own autonomous spaces in which new progressive and emancipatory juridical orders can be created that sublate the extant state of exception through mass direct action and community-based assemblies.



Lastly, please help the Arce and Gonzalez’s children and familias who have sacrificed much and stood strong for six-long years as they have and continue the fight for their community within the context of Arizona’s pervasive anti-Mexican environment.

Arce and Gonzalez RAZA DEFENSE FUND

Donations can be made to the RAZA DEFENSE FUND in the following two ways:

1) On the “RAZA DEFENSE FUND – We Pay” Web Site, you can donate by accessing the following link:

2) By mailing a check to “Raza Defense Fund” to the following address:


307 South Convent

Tucson, Arizona 85701

mexmigration / By Devon G. Peña | Sourced from

Posted at July 4, 2012, 7:20am

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