Just over a
week to go until the 4th 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.
