Andrew Napolitano has some choice wisdom for President Trump, who recently proposed deporting illegal invaders without due process:
The president took an oath to preserve, protect and defend the Constitution. The Fifth Amendment to the Constitution provides in relevant part that “no person shall be … deprived of life, liberty, or property, without due process of law.” This is the so-called Due Process Clause, and it essentially prevents all governments from impairing the life, liberty or property of any human being on American-controlled soil without a fair trial.
Because the Supreme Court has ruled that there are no word choice errors in the Constitution and the words of its text mean what they say, the Framers must have carefully and intentionally chosen to protect every person, not just every citizen. “Person,” in this context, has been interpreted to mean any human being on American-controlled soil against whom the American government is proceeding, irrespective of how the person got there.
This protection is so profound and universally understood that when the George W. Bush administration rounded up what it thought were the collaborators, enablers, supporters and relatives of the 9/11 murderers whom it thought were here unlawfully, it recognized their due process rights and afforded them trials before deportation. The government actually lost many of those cases, and innocents were not deported.
He’s right, legally and technically. If we’re still pretending the Constitution is anything but a relic in a museum, then it might be well to follow it. The DP clause is thus still valid. As are the following portions and proposed usages:
The current law is a sad mess but, generally speaking, if an invader does not make an asylum claim or plea to some other removal-delaying mechanism, then the due process can be very short and fast – a quick hearing would suffice.
The law could be (should be) changed to allow for rapid removal and to do away with incentives and protections, among other restrictions. This would require action from a Congress which repeatedly demonstrates its uselessness, ineptitude, and stupidity. Asking A LOT. It would also require surviving court challenges, sure to be filed nationwide as a result of any program or legal change. If (a huge if) Trump could somehow motivate his idiotic party to action, then both issues could be resolved together, Constitutionally.
There’s more in the old parchment than due process. Congress has the power and the authority to establish, ordain, and regulate the jurisdiction of the Courts. “Congress shall have the power … To constitute Tribunals inferior to the supreme Court.” US Const. Art. I, Sec. 8, No. 9. ” The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” US Const. Art. III, Sec. 1.
The Supreme Court only has original jurisdiction over a narrow band of matters specified in Art. III. All others and all those of the inferior courts may be limited by Congress (should they see fit).
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
US Const. Art. III, Sec. 2, 2-3 (double emphasis added).
Immigration and naturalization, being Article I subjects, are not included in the specific exemptions. Thus, they are potential exemptions (as are [potentially] most other laws). So, a simple add-on to the end of any modifying legislation could strip the courts of the ability to review cases executed under the new law: “No court, including the Supreme Court, shall have any jurisdiction to review any matter arising under this Law.”
As an added deterrent, Congress could make extrajudicial review an impeachable offense.
One, wishing to challenge the new law, could do it the right way: seeking redress through Congress. All this assumes much.
And, while we’re assuming, let’s look deeper at the issue of invasion as it concerns the States affected by the influx of foreigners. Equating unmitigated and unrestricted immigrant invasion to a form of warfare, which is certainly is, the influx looks a lot like an actual invasion. The Constitution also provides a mechanism for dealing with this, for the several States.
Assuming Congress and the President are not doing enough to combat the issue (Trump is trying, Congress … do we even have a Congress anymore?), then the States can DECLARE WAR on the invaders, their exporting nations, or countries allowing them to pass through. “No State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” US Const. Art. I, Sec. 10, No. 3.
If expecting action from Congress assumes much, then expecting action from Austin or Sacramento assumes more.
But, if it’s still real, then the Constitution is still there – all of it.
UPDATE: Another thought on “persons” and due process:
What or who is a “person?”
Websters defines “person” as a “human individual;” or, archaically, as “the body of a human being.”
Black’s, for legal purposes, defines “person” as “A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. no. 137. A human being considered as capable of having rights and of being charged with duties; while a “thing” is the object over which rights may be exercised.”
“Human being” is the common denominator. You probably already knew all of this without dictionary references; you can probably guess where I’m going with it. Play along. A “human being” or just “human” is, scientifically, a certain kind of “bipedal primate mammal (Homo sapiens).” This could be further broken down to the level of the exact chemical composition, genetic markers, and associated vitality necessary to satisfy any biologist as to the specific nature of the subject creature. Having satisfied the purely scientific, the medical, there is no need to go even further with the addition of a soul.
Again, you probably knew “person” meant “homo sapien,” all types and forms. I suspect you’re a human person. Napolitano and Trump are human persons. Those crossing the borders, legally or illegally, are human persons. All humans are persons. All, to include the smallest, the unborn, whose only rights consist of the right to life and chance for development into the above, larger forms and whose only charged duties consist of the growing and living.
First: Redefining a baby as a “lump of tissue,” a “thing,” per Black’s, is a dangerous proposition. Technically it’s true. Somewhere between the person and the soul, “tissue” is firmly established to exist. And, everything physical is a “thing.” So, yes, that “thing” in the woman’s womb is a “lump of tissue.” So is the woman. So is the doctor with the vacuum.
If we’re to believe in equality or rights, then why would a “right to choose” be limited only to a certain class of (pregnant) women? That’s sexist. Does a man have the right to chop a doctor into 1,000 pieces and vacuum them into a bucket? Just tissue, things, mind you. Reality, legal and moral, tells us, “no.”
Now: Reality, legal and moral, also tells us that, if aliens at the border are persons, deserving of due process to preserve a liberty interest concerning geographic location, and if all persons have such process rights of liberty and life, then so to do unborn children.
Grant children due process! Justice demands it. As does the Fifth Amendment.
My old friend Bobby Franklin used to introduce legislation to affect just these ends. His law would have required that any legal abortion proceed only after the issuance of a death warrant, following a hearing before a judge. Someone would need conclusively demonstrate, as in a capital offense, why the baby deserved to die. Due process for the child at issue. His idea was mocked by the same sorts who, now, insist on due process for illegals and who, now, scream and shout about the inhumanity of separating children.
Just another thought.