Is New York City’s new rule about using the term ‘Illegal Alien’ an assault on the Constitution? Yes, but not on the Constitution you’re thinking about.
I’ve seen several news reports about New York City’s new legal enforcement guidelines that bans employers, housing providers, and law enforcement from using the term “illegal aliens”. I’ve heard many people claim this is a violation of the First Amendment, but they’re wrong.
Congress shall make no law … abridging the freedom of speech,
First Amendment of the U.S. Constitution
This new rule is not a creation of Congress but of New York City’s Commission on Human Rights. Since Congress has not made this law, this is not a First Amendment violation. We’ve all been told that any abridgment of Free Speech is a First Amendment violation, but that’s not true; the First Amendment clearly focuses its restrictions on the laws made by Congress. (The fact that many “laws” are created by the Executive and Judicial branches is a problem I discuss elsewhere.) So, while this law is most definitely an abridgment of Free Speech, the U.S. Constitution only protects us from the federal government abridging our freedom of speech; not from our states or cities.
Some of you may be asking right now, “If this is a violation of Free Speech, how can that not be a violation of the Constitution?” The answer is that while it’s a violation of the Constitution, it’s not the one you’re thinking of:
Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
Constitution of the State of New York, Article I, Section 8
We often forget that each and every state has its own Constitution, and they all include protections similar to those in the U.S. Constitution’s Bill of Rights. In fact, Article I of New York’s Constitution is called the Bill of Rights, and as we see, Section 8 not only protects freedom of speech and the press in the state, it goes into more detail than the U.S. Constitution does. New York City’s new law is clearly a violation of Article I, Section 8 of the New York State Constitution since it clearly restrains the liberty of speech. That means it should be challenged in New York State courts as a violation of the Constitution of the State of New York.
Just because this NYC rule isn’t a violation the First Amendment doesn’t mean it isn’t a violation of the U.S. Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
U.S. Constitution, Amendment 8
Let’s look at the fine. Do you think $250,000 is an excessive fine for using a term not currently favored politically? That is over 3.5 times the average salary of New York City residents ($68,255). That certainly seems excessive to me. So this law is a violation of the U.S. Constitution because it’s violating the 8th Amendment not the First. But that’s not all:
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.
U.S. Constitution, Amendment 14, Section 1
Let’s not forget the 14th Amendment’s Equal Protection Clause. Since calling someone an illegal alien singles out one group of people for special protection under the law, this rule clearly violates the equal protection clause. Will someone be fined for calling me a natural born citizen? If not, then why do some groups get protection and others do not? This law, like so many others we see in effect today, is a blatant violation of the Equal Protection Clause, yet that argument is lost when people falsely claim it’s a First Amendment issue.
Conclusion
Why do I make such a big deal about what laws are being violated? Because the details matter. If we complain when the courts misinterpret the Constitution to get the outcomes they want, we cannot suddenly ask them to do so to get the outcomes we want. Better yet, we don’t have to. If the Constitution means what it says, then we don’t need to twist its interpretation to protect liberty because it already does.
Yes, this New York City rule violates both the 8th and 14th Amendments to the U.S. Constitution. However, the more egregious violation, that of Freedom of Speech, is protected by the New York State Constitution. Therefore this case should be tried as a violation of Article I, Section 8 of that constitution. Only if the New York State courts fail to uphold their oath to support their state’s constitution should a federal case about the violations of the U.S. Constitution be filed.
If we want people to follow the laws, including the Constitution, then we have to follow them ourselves. Otherwise, we’re no better than those who use the courts to manipulate the law to get the outcomes they want; we’re just doing it for different reasons. So the next time you hear someone claim this is a violation of the First Amendment, take some time and kindly educate them about the truth. For if you know the truth, it will set you free.
