Due Process -- A Fundamental Right, Even for Immigrants

Just over a week to go until the 4^th of July and everyone is getting ready to celebrate.  But, what are we really celebrating?  Fireworks and time with family?  A day off?  Or, are we celebrating the principles for which our forefathers fought?

“Freedom means the supremacy of human rights everywhere.  Our support goes to those who struggle to gain those rights and keep them.  Our strength in our unity of purpose.  To that high concept there can be no end save victory.” Franklin D. Roosevelt.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  Powerful words from men who were facing the birth of one nation while leaving another.  Our founders also recognized the importance of protecting the rights of people by not allowing a person’s life, liberty, or freedom to be taken away without due process of law.  It is on this point that it seems the interpretation among everyone who has been expressing opinions about the immigration debate seems to diverge.

First, a historical note with regard to interpretation.  Due process is protected through two constitutional amendments.  The first, with regard to actions by the federal government, is controlled by the Fifth Amendment.  The second, with regard to state action, is controlled by the Fourteenth Amendment.  Importantly, neither amendment restricts due process rights to citizens.  Rather, they both state that “no person shall be deprived.”

What does that mean with regard to today’s situation?  It means that our government must afford certain protections when detaining or otherwise affecting the lives of immigrants.  As Black’s Law Dictionary explains, due process requires that a person be given “an opportunity to be heard and to enforce and protect his [or her] rights before a court having power to hear and determine the case … [a]side from all else, ‘due process’ means fundamental fairness and substantial justice.”  But, wait, many will say, they entered illegally, they shouldn’t have as many rights.  Our federal courts, charged by the Constitution with interpreting our laws, have ruled differently.  “As old as the first immigration laws of this country is the recognition that non-citizens, even if illegally present in the United States, are "persons" entitled to the Fifth Amendment right of due process in deportation proceedings; once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all ‘persons’ and guard against any encroachment on those rights by federal or state authority.”  Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir., 2002); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, (1953) ("It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.") (citing Yamataya v. Fisher, 189 U.S. 86, 100-101 (1903) ("The Japanese Immigrant Case"); Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50 (1950); Kwong Hai Chew, 344 U.S. 590, 598 (1953)

The United States Supreme Court has recognized that Congress has the power to regulate immigration.  But, importantly, it has also noted that such power is still constricted by the Constitution.  With regard to custody determinations of the immigrant children who have been separated from their parents, such a determination clearly violates the fundamental right to parent which has been recognized by the United States Supreme Court.  See Troxel v. Granville, 530 U.S. 57 (2000); Washington v. Glucksberg, 521 U.S. 702 (1997); Reno v. Flores, 507 U.S. 292 (1993); Meyer v. Nebraska, 262 U.S. 390 (1923).  The Supreme Court left no doubt in its recitation of how the fundamental right to parent had been protected throughout history: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”  Troxel v. Granville, 530 U.S. 57 (2000), citing Prince v. Massachusetts, 312 U.S. 158, 166 (1944).  This is why for so many of us, the recent actions by Immigration and Customs Enforcement is so concerning.  If a fundamental right that has been long recognized can be so easily trampled because “these people don’t deserve rights,” despite the fact that the Constitution and our Supreme Court have clearly stated that they do have such rights, how long until this trampling of rights extends to other classes of society?  As John F. Kennedy recognized, “the rights of every man are diminished when the rights of one man are threatened.”

To hopefully quiet the naysayers who want to take my statements about due process to mean that I think we should just open our borders, etc… I am not saying that we should not have an immigration process.  Yes, we need to have a system in place.  But, that system must follow the principles of due process and seek to protect fundamental human rights.  At its core, that it what America is about; that is what we celebrate every year on the Fourth of July.  “America is great because she is good.  If America ceased to be good, America will cease to be great.”  Alexis de Tocqueville.  Do you really want to make America great again?  That ideal is not built on military strength or how tangibly rich we are.  Our greatness, our richness comes from the ideals this nation was founded upon and which bear repeating from the beginning of this discussion.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  Every discussion, every decision must be guided by those truths.  Without them, America cannot be great because it will have strayed from its purpose.