The Constitution-Free Zone: Fact and Fiction
In recent months, there has been a growth in the level of interest and curiosity regarding the area near the border of the United States known as the “constitution-free zone.” Persistent civil disobedience, viral “checkpoint refusal” videos on YouTube, and unlawful arrests of several activists in the area have caused the issue to reach newfound levels of awareness.
For those who have worked towards generating a wider public discourse, the increased media attention and revived dialogue is undoubtedly a good sign. Unfortunately, and somewhat understandably, this new attention has come with misconceptions, misunderstanding, and a general lack of historical context.
The Constitution-Free Zone Defined
The term “constitution-free zone,” with regard to the area near the border of the United States, was first coined by the American Civil Liberties Union in 2006. Officially, it is the land mass within the “border search exception,” established by the Immigration and Naturalization Act (INA) of 1952, US Code 1357, and defined by federal regulation 8 CFR 287.1 (1956) as “not exceeding 100 air miles from any external boundary of the United States.”
Within this area, agents of the Department of Homeland Security (DHS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Coast Guard are granted the authority to stop, question, and search people and their property without regard for 4th Amendment protections, probable cause, or a warrant.
Quick History Lesson
According to the established history of the US Border Patrol, “mounted watchmen” tasked with patrolling the border, attempting to prevent the flow of “illegal immigration,” have existed since 1904. Their first official authorization from Congress came in 1915, with further powers granted in 1921 and 1924 through immigration legislation.
The timing — which coincided with the introduction of laws imposing tax penalties and eventually prohibiting opiates, cocaine, marijuana and alcohol — cannot and should not be ignored. The growth and expansion of the US Border Patrol is immeasurably linked to prohibition, and both are rooted in a history of targeting vulnerable immigrant classes of American society.
With the passage of the INA in 1952, the powers and authorities that Border Patrol agents enjoy today became fully codified into law. At this point in history the first fixed, internal checkpoints also appeared near the border, away from the port of entry.
These checkpoints within the interior of the country are perhaps the most vivid manifestation of the marriage between immigration and prohibition law, at the expense of protections against “unreasonable searches and seizures.”
The Supreme Court
The legality of these checkpoints, however, has not gone unchallenged. In 1976, the Supreme Court of the United States delivered a landmark decision in favor of the government in U.S. v Martinez-Fuerte. In this case, the court upheld the warrantless, suspicion-less stop and search leading to the arrest of Amado Martinez-Fuerte, thereby establishing the level of suspicion necessary to conduct a search at an internal border patrol checkpoint — none.
In the court’s dissenting opinion, Justice Brennan decried the decision as an “evisceration of Fourth Amendment protections. . . . Consistent with this purpose to debilitate Fourth Amendment protections, the Court’s decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment.”
Some legal experts today still consider this decision by the court to be an “anomaly” in the law and find contradictions within the court’s own decision in this case. While the court, on the one hand, upheld the legality of the suspicion-less, warrantless stop and search, it also made note that “All these operations are conducted pursuant to statutory authorizations empowering Border Patrol agents to interrogate those believed to be aliens as to their right to be in the United States and to inspect vehicles for aliens”[emphasis added].
In other words, no “reasonable suspicion” is necessary, but operations must be conducted in agreement with US Code 1357. It states that agents must believe a person to be an alien before interrogation — implying some level of suspicion is needed.
So, why is this bit of history important and what does it have to do with the “constitution-free zone” today?
It is vitally important to understand that the part of the United States the ACLU describes as lacking constitutionally guaranteed protections has existed in this way for a very long time. As demonstrated in this column, the deterioration specific to 4th Amendment protection, freedom of movement, and right to privacy has occurred slowly and incrementally.
Contrary to popular belief, this is in no way a new phenomenon, as individuals within this zone have been subjected to questions regarding their citizenship and searches without cause or consent for over 60 years, and almost 40 years of it with the approval of the Supreme Court.
With the creation of DHS in 2001 and the absorption of agencies like Border Patrol and CBP, the size and scope of these agencies expanded. Most notably, in 2008, “property” that was able to be seized and searched without any reason at all was redefined to include all electronic equipment, laptops, cameras, and cell phones.
While this supposed authority to maintain fixed checkpoints within the interior of the nation extends to 100 air miles of all borders, potentially affecting two-thirds of the population (or approximately 200 million people), they are predominantly located in the country’s Southwest region.
The people of the borderlands in the Southwest United States have lived under these restrictions to their liberty for generations. Answering questions from federal agents when traveling within the country is normal; searches and seizures are an everyday occurrence; and checkpoints have, unfortunately, become as ordinary as checking the mail.