When Thomas Jefferson wrote of "the separate and equal station to which the Laws of Nature and of Nature's God entitle (us)," he was saying that men are no longer defined by their government, their nationality or their king. He was announcing a new moment in human history.
There's no more basic principle in our government because it has no higher appeal. He bases it not on any written manmade law but on God AND nature, to cover all his bases. You have certain rights EVEN IF THEY'RE NOT WRITTEN DOWN.
No one can take them away from you, least of all a government.
You can't round up immigrants, jail them without charges, hold them for indefinite periods, deport them without hearings, deny them lawyers, and claim that they're not entitled to the same protections that American citizens are entitled to. God and Nature forbid it.
Unfortunately, our Supreme Court just said that you can. And these are men and women who call themselves conservative.
Conservative means basing everything on time-honored bedrock principles, and there is nothing more time-honored and principled than the original document by which America was created.
As if that were not enough, Jefferson hammered it home in the second sentence: "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 ..."
He didn't say that Anglo-Saxon men were created equal. He didn't say that the men who happened to be dwelling in North America at the time were created equal. He said that we're taking a stand for the idea that every man, no matter what his origins, no matter what his allegiances, is to henceforth be treated the same as any other man.
Again, no one taught this to our Supreme Court.
When Jefferson listed his grievances against King George III, the first six were complaints that the king was obstructing fair lawmaking. The seventh grievance was that the king was blocking the naturalization of foreigners. When a Frenchman or a Dutchman or a German or a Spaniard settled in the colonies, King George refused to allow them to convert their citizenships so that they could own land and engage in commerce and enjoy the full protection of the laws. The signers of the declaration said this must stop.
And so, on the first day of our existence as a country, the revolutionary founders came down on the side of two principles: all men are equal, and all men should have the protection of the laws. These were two of the self-evident rights.
This doesn't mean that Americans have ever been especially kind to foreign immigrants. The shame of the country shows up as early as the 1840s, when there were riots in Boston and New York against the Irish, and many were killed in bloody gang wars. This is, of course, what Martin Scorsese's "Gangs of New York" was all about.
It happened again in the 1920s, when the fear of radical "reds" led to wholesale roundups and deportations that were often ruled illegal -- after it was too late. It happened in 1942, with the now scandalous internment of 120,000 Japanese-Americans and the confiscation of their property. It happened in the 1950s, when Mexicans were targeted for abuse.
In fact, neither the executive branch nor the legislative branch, have been at all kind to immigrants. The Congress has passed unconstitutional laws against foreigners, and the executive branch has carried out unconstitutional trials and deportations of foreigners. But in every case, until now, the judicial branch has put a stop to it.
And today it's even worse than the 1950s. If you're unlucky enough to be suspected of terrorism -- or even knowing something about a terrorist -- there are two ways they can hold you indefinitely. One is to get you on an immigration violation, which can be something as simple as misspelling your name on a visa application. Since any immigrant has probably already filled out dozens of pages of documents, the chance of some of them being wrong -- in the sole judgment of the police -- is virtually 100 percent. They do this without shame.
The other way is to be held as a "material witness." At one time this meant you would be held until a grand jury could be convened, but now it just means you'll be held. Period. (One way to deal with a material witness is simply TAKE HIS SWORN TESTIMONY and then let him go. But since they DON'T take their testimony, it looks increasingly like they're being held for a false reason.)
So what normally happens when we have executive officers exceeding their authority? We ask the courts to rein them in, at the least, and if they're shown to be acting in bad faith, we ask the courts to censure or indict them.
And it's not like we're dealing with legal arcana here. The precise legal question to be decided in almost all of these cases is what the American courts have called "the most sacred monument of personal freedom." That would be, of course, the writ of habeas corpus.
Habeas corpus is a Latin phrase that means "You have the body of ..." Once the writ is filed -- according to the most ancient principles of British and American law -- the government must either release that body or show why that body is being held. In the 19th century, Congress passed something called the Chinese Exclusion Act, which allowed the Collector of Customs at any port of entry to refuse to admit Chinese to the country for whatever reason he deemed necessary. The Supreme Court held the act invalid and said that "any human being, no matter what his race or color," was entitled to habeas corpus.
Since then, the Congress has written into every immigration act -- in 1891, in 1952, in 1961 and especially in 1996 – language that says a foreign national is not entitled to court review of his immigration case. And every time the courts have told the Congress it was wrong -- until now.
There are over a hundred years of decisions saying that, while foreigners might not have precisely the same rights as Americans, they can't be "deprived of life, liberty, or property without due process of law," regardless of whether they're here legally or illegally, with or without citizenship. It was exactly 100 years ago, in fact, that the Supreme Court ruled in Yamataya v. Fisher that the immigration service can't deport someone without first having a hearing that meets due process standards.
In case everyone's forgotten what that means -- there seems to be Bill of Rights amnesia going around these days -- it means a speedy trial (not happening), a public trial (not happening), a trial by jury when actual crimes are alleged (not happening), full information on the nature and the cause of the accusation (not happening), the right to confront witnesses (not happening), the ability to call witnesses (not happening), and the right to counsel (not always happening).
I'm not distilling these from any laundry list of rights that have been built up over the years. These are all spelled out in the Sixth Amendment. They've been part of our legal fabric since the beginning.
As recently as August of 1997, the Court of Appeals for the Second Circuit said that Janet Reno's interpretation of immigration laws -- she believed that NO COURT had the power to review her decisions -- was not valid for a simple reason: "The primary historical use of the writ of habeas corpus was precisely against executive detention."
That's what we have now: executive detention. It's what the kings of medieval Europe did, it's what King George III did, and it's wrong. This court is not conservative. This court is about as radical as you can get.
(John Bloom writes a number of columns for UPI and may be contacted at firstname.lastname@example.org or through his Web site at joebobbriggs.com. Snail mail: P.O. Box 2002, Dallas, Texas, 75221.)
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