Constitutional Rights Are Not Always Popular

But They Are Essential to Democracy

I have written before that the Trump Administration has several times called indirectly to ignore the rights of due process accorded by the Fifth and Fourteenth Amendments.  In this post I want to discuss Trump’s more serious tweet of Sunday, June 24, in which he explicitly calls for revoking those constitutional guarantees of due process when it comes to immigrants:

We cannot allow all of these people to invade our Country.  When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.  Our system is a mockery to good immigration policy and Law and Order.

It’s those “judges and court cases,” of course, that assure our rights are protected.  This brazen call to ignore constitutional protections is a new low for this President. 

Other presidents have sometimes flouted constitutional rights.  President Roosevelt’s order to intern Japanese Americans is perhaps the most well-known example.  To my knowledge, however, no previous president has explicitly suggested ignoring the courts altogether.

To recap the relevant points from my previous post, due process requires

• the person be given notice of the procedure,
• they be given an opportunity to be heard, and
• the decision is made by a neutral decision maker. 

In practice due process also includes

• the right to present arguments against the decision,
• the opportunity to be represented by counsel,
• the right to present evidence, and other procedures.

After enumerating certain rights of citizens, the 14th Amendment declares that

[N]o State shall ... 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. (italics mine)

The Supreme Court has ruled several times that, with few exceptions (namely, voting, some government jobs and gun ownership), even undocumented immigrants have full rights to constitutional protections, including due process.  Trump’s tweets are an unambiguous attack on the Constitution in direct violation of the president’s vow at his inauguration to “preserve, protect and defend the Constitution of the United States.” 

Constitutional protections are often unpopular, especially the First Amendment’s guarantee of freedom of speech (even racist or hateful speech) or the Fourth Amendment’s guarantee of protection from unreasonable search and seizure, especially when used by what-appear-to-be obviously-guilty criminals.  But the Constitution and the Supreme Court’s interpretations of those protections are clear: As unpopular and inconvenient as they may be, they are still the law of the land, to be preserved, protected, and defended by the President.

We must ask: Why is the President making such statements? 

From the very beginning of his campaign, Trump has repeatedly told us that immigrants are dangerous criminals.  Stirring up these fears of the “other,” especially immigrants, is almost certainly the main purpose of these tweets.  It’s important, therefore, to counter some of the President’s lies.

1. Trump has tweeted that “Border Patrol Agents are not allowed to properly do their job at the Border because of ridiculous liberal (Democrat) laws like Catch & Release.”  In fact there is no such law, (much less a Democratic one), and “Catch and Release” was a policy that Trump has already eliminated by executive order shortly after his inauguration.
   Furthermore, there is already a policy under which the Border Patrol agents immediately turn back almost half of those attempting to cross the border unless they claim they will be in danger if they are returned to their home country.
2. Trump has tweeted that “big flows of people” are illegally entering the US from Mexico “to take advantage of DACA” (Deferred Action for Childhood Arrivals for the “Dreamers”).  In fact, DACA is only available to applicants under 16 who have lived in the US continuously since 2007.  No one who crossed the border since 2007 has been eligible for DACA.
3. Trump has said undocumented immigrants commit more crimes than US citizens.  In fact, “illegal” immigrants commit fewer crimes than US citizens.
4. In response to reasonable calls for more immigration judges who could speed up the processing of the backlog of more than 650,000 cases, Trump has tweeted that “we now have thousands of judges -- border judges -- thousands and thousands.”  In fact there are about 335.

More important, both US and International law have long guaranteed haven to refugees seeking asylum if they would be in danger in their own country.  The US already has very strict legal process for evaluating the credibility of those claim.  After 44% of those seeking to cross the border illegally have been turned away on the spot by Border Patrol agents, those “Judges or Courts” that Trump would bypass review the remaining immigrants’ claims of danger thoroughly: 76% of them are substantiated.  All those immigrants whose lives were truly in danger would have been turned back by the “zero-tolerance policy.”  It is this required, humanitarian process—to say nothing of the Statue of Liberty’s welcome to “your huddled masses yearning to be free” for which we are perhaps most admired around the world—that the President wants to nullify.

Trump’s statements are meant to scare Americans into abrogating the due process provisions of the US Constitution that is meant to protect all of us from the kind of governmental arbitrary practices that could deprive any one of us of our right to “life, liberty, and the pursuit of happiness.”

Perhaps we should meditate upon Martin Niemöller’s poem about Germany’s Nazi regime:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist. 

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist. 

Then they came for the Jews, and I did not speak out—
Because I was not a Jew. 

Then they came for me—and there was no one left to speak for me.