The Constitution-Free Zone: Fact and Fiction

Misconceptions and Lack of Historical Context Undermine Gravity of the Issue

By Guillermo Jimenez

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.

Generational Conditioning

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.

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Guillermo Jimenez- BFP Partner Producer & Analyst
Guillermo Jimenez served as a National Delegate for Ron Paul, and is now working to advance the message of liberty outside of politics through his venture into independent alternative media and grassroots activism. He is also the host of a live radio show Traces of Reality.

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  1. This means that in all the US coastal cities such as New York, Miami, San Francisco, Seattle, etc. the Constitutional Rights of citizens can be declared void or suspended at the discretion of DHS.

  2. It is a reality, and your choice is to go with the grain and get where you’re going, or go against the grain and get jacked up, and in the process make yet another YouTube video of boldly defying “the Man” which gets more people spun up so they go against the grain and make their own video, and on and on.

    Eventually the State will use its resources to block, via technical means, the making of these videos. A sufficient field strength of electromagnetic energy directed into your vehicle will disable and possibly destroy any recording devices you have, along with smart phones, tablets, computers, and the built-in electronics of your car. What fun checkpoints will be THEN, when tow trucks are lined up like taxis at the airport, to remove disabled vehicles. It will be greatest boon for the auto repair industry since emissions testing. Yes, the outcry will great, and no, they won’t care.

    I’ve lived and traveled in that zone virtually all my adult life, and I’ve never had a conversation lasting longer than ten seconds with an agent, never had my trunk opened, or been waved into the dreaded “secondary”. I pull up with all my windows down so they have full visibility of everything in the car, with a completely relaxed body posture, and answer any questions without hesitation or elaboration. Telling the truth is highly optional, of course. In speaking to these guys, less is more up to a point.

    If you’re relaxed, they’re relaxed, and your wheels will hardly stop rolling. If you’re carrying a laptop or tablet, have it powered up and displaying a map of the area. That seems to make it invisible to them.

    Play to win, not to make some point with guys who don’t make policy and often don’t even grasp why you might be spun up about being asked a question or two. They are trained to go to high alert when faced with any kind of resistance, and they are incentivized to escalate the situation if given an excuse. Don’t give them an excuse.

    If more incidents and arrests occur at checkpoints, the inner-bureaucracy case made on Powerpoint presentations will be that checkpoints are effective and should be maintained or increased. If, on the other hand, they get nothing but roll-thrus day after day after day, someone in authority will eventually say, “Hmmm…no incidents or arrests, no property seizures…why are we doing this again?

    If you want the basic scenario to change, you’ll have to change things much higher up the food chain than can be addressed at a check point manned by low-level grunts.

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