In going through my father’s things, I found his Selective Service Registration Certificate from 1951. It says on it that it must be carried at all times for identification. Is this still constitutional or has it been challenged and overturned?
Apparently the regulation requiring that it be carried at all times was eliminated in 1974. It doesn’t seem that he requirement itself was challenged before then, but there was a Supreme Court case that upheld a conviction for burning a draft card.
Yes. States require you to carry Driver’s Licenses and Insurance papers when driving a vehicle.
I understand there is no law that requires you to carry ID, but…
You are not allowed to drive without a driver’s license and insurance, which identify you. In practice, most people carry a debit card or a credit card, which can act as “secondary” identification. Your cell phone is practically ID in itself. You need a card for many other things. You may not enter certain areas without identifying yourself. Police may find it suspicious if you have no ID at all. So you typically carry ID because it’s simply too inconvenient not to do so.
However, I don’t think it’s against the law to leave your wallet and phone at home and go out for a walk in the park.
The same thing applies in Canada. However provinces issue “health cards” which you need if you have to go to the doctor or the hospital. It’s not likely to happen, but if I fell and hurt myself, or someone attacked me, the last thing I want is to not have my health card on me. The health card has my name, address, etc, on it, so it identifies me pretty well. There used to be a non-photo ID version of the Ontario health card, but that was eliminated a few years ago, so pretty much every Ontario resident will at least carry that card on them. Those cards are free, but cannot be used for some purposes that other ID cards get used for, such as opening bank accounts.
The factual answer is that it remains undecided by controlling U.S. Supreme Court case law. Brown v. Texas: Brown v. Texas :: 443 U.S. 47 (1979) :: Justia US Supreme Court Center and Kolender v. Lawson: Kolender v. Lawson :: 461 U.S. 352 (1983) :: Justia US Supreme Court Center suggest that such a law would be disfavored. Hiibel v. Sixth Judicial Circuit: https://www.law.cornell.edu/supct/pdf/03-5554P.ZS suggests that it might not so much be disfavored.
There are things that you can opt into, like driving, or taking a flight, that have ID-carrying requirements. But, the Supreme Court has never upheld a generalized ID-carrying requirement, and I don’t think any state has one, where you could just be asked for ID, or charged for not carrying it.
If you are stopped by police for violating the law, though, and you don’t have ID, you can be detained long enough for police to identify you. And, of course, if you were driving, there can be an additional charge for failure to carry or present your license, if that’s required in your state for driving.
So it seems it is left still as an exercise for a later time, in case something non-moot goes obviously too far.
Currently most of what we use as “ID” are documents created originally for some other specific purpose (certifying you are an authorized driver; stating whereof you are a citizen for border-crossing purposes) that contain identifying information and have grown to be accepted as “ID” for various other purposes, there being neither standard universal ID document nor mandate to even have any.
The OP example would seem to suggest an implicit clause: it must be carried at all times “for the purposes of identification…” as someone who is not a draft dodger? Which would open up the question: what entitles anyone to stop you and challenge you to prove you should not be in Korea? It could be that the society of the time easily tolerated a law or regulation saying so.
In our day and age we have Real-ID, which says if a state is going to issue a document to use as an ID, it is not good for federal purposes like airline flight or entering some sensitive facilities unless it meets a set of requirements. But a state may still issue a noncompliant ID for purely in-state purposes, and you still don’t have to have it on you unless you want to use it for one of those purposes.
Part of the sociopolitical issue in the USA is that there exists in the mind of a large part of the public the presumption that any form of single, universal ID document of course, necesarily will become mandated to carry with the resulting “your papers, please” scenario where you can be stopped and challenged to produce it, just because.
A couple of things to unpack there. I think that based on all of the cases I cited, the police could not approach and detain you for the purposes of checking that you (suppose fitting the description of a young male subject to the Selective Service Act) have your draft card on you. The Terry v. Ohio case says that this would require at least a reasonable articulable suspicion of criminal wrongdoing, or some evidence that you were not carrying your card or were otherwise in violation of the Selective Service Act.
The second part is typically where it comes up. Say you are drunk in public and they police have lawfully seized and searched you and found that you did not have your draft card on you. Could that act be punishable? Based upon the earlier draft cases and the power of Congress to raise and support armies, I would say…probably.
However, (and I know the OP framed it in the draft card context) the larger question is whether the state government could require regular citizens, just going about their business, to carry identification however defined, on their persons simply for being in public with no connection to any overriding government interest except crime prevention. It’s an open question, one which before Hiibel would have been answered with an “almost certainly not,” but now it is unclear.
If the United States issued a national ID card and enacted a law making it mandatory for all Americans to carry it whenever they were out in public, what would be the argument against this law be? I’m not talking the philosophical or moral argument; I mean the legal argument you would use to challenge the constitutionality of the law.
I would imagine the free assembly would be a good argument. By requiring ID (“papers, bitte”) they are limiting your ability to assemble freely by putting conditions on it. Plus, where is such a power delegated to the Federal government? At most, they might require them for inter-state movement, which IIRC violates some tenet of the constitution about free commerce.
I don’t know that a provincial health card is something people carry as a matter of course - mine just happens to be in my wallet now with a lot of other stuff, but for decades I did not have a wallet and carried things like a driver’s license loose. I did hear about some person I had a passing acquaintance with who was hundreds of miles away, walking down the street in another city and dropped dead of a heart attack. he had absolutely no ID on him, it took the police quite a while to figure out who he was and notify next of kin. In Canada, generally, they will admit anyone to hospital (same as the USA, I supposed) and worry about documentation later if it is not available. If you are in your home province, there is a good chance they can identify you on the computer and get your health ID if your name is known - unless you are John Smith, how many people in the province will there be of the same name and same approximate age? My cellphone company logon ID is my firstname-lastname and they are the second-biggest provider across Canada.
First question would be, what’s the enumerated power under which Congress is passing such a law? Congress, unlike state governments, has to at least have a fig leave of a constitutional foundation before it can act, even if no rights are infringed.
The commerce clause has been stretched to cover a lot more ground than this. So I think any Tenth Amendment argument is not going to get very far.
If we go back an amendment, the Supreme Court has occasionally treated privacy as an unenumerated right. But that’s not really very firm ground.
I considered that. But I have to admit I have a hard time drawing a direct line between requiring people to carry an ID and limiting their right to assemble. Just bring the ID with you.
A counterargument would be that public indecency laws also restrict people’s right to assemble by requiring them to wear clothes in public. But nobody argues that public indecency laws are unconstitutional.
I can’t see how requiring people to carry ID cards is a greater obstacle to their assembling than requiring them to wear clothes.
By the time a “Papers, please” scenario happens, you’re already in a police state. That was the case in Nazi Germany and Apartheid South Africa. The ID doesn’t lead to a police state, the police state introduces mandatory ID laws if there were none before. Blocking the ID laws doesn’t block the police state, that’s not how that works. Many non-police states can also have mandatory ID laws.
The issue is the police state, not the ID laws.
If someone can be detained/arrested for not having an ID on them while they’re out on the street in front of their own house (say they’re raking leaves or talking to their neighbor on the sidewalk, which is on the public right-of-way) then yeah it’s definitely limiting their right to assemble.
And yet it wasn’t able to stretch to cover the Affordable Care Act. In part because SCOTUS wouldn’t come together to say that “not doing anything” is an activity that affects interstate commerce.
So I’m skeptical to think it could be stretched to cover mandatory ID. At least via the commerce clause. Taxing power (which is what saved the individual mandate from being struck down)? Okay… but the tax would have to be so small (given how cheap an ID would be—much cheaper than health insurance) as to be specifically NOT an insurmountable penalty and it would, by extension, almost certainly have to still be legal to elect to pay the tax rather than have the ID, at least as far as the federal government is concerned.
One might envision how, if the government could ever get around to universal healthcare, it could establish some sort of ID regime for that, but it would still be an uphill battle I think to make mandatory carrying (not just ownership) of such an ID, even while not seeking healthcare, a legal requirement.
Ah but how would you prove you had paid the tax? Seems like you would need some kind of document that identified you as a payer of the Not-Carrying-ID-Tax…
Getting arrested for breaking any law would similarly limit someone’s right to assemble. Yet people do get arrested. Why would this law be different?
I feel that decision was based more on political considerations than constitutional interpretation. I don’t feel it offers a clear insight into how the court might rule in future decisions.
(Edited) I thought that this was addressed by SCOTUS in Arizona’s SB 1070 law, but they only addressed the state’s usurping of immigration enforcement from the feds.