Serious Immigration Law Enforcement Means Serious Destruction to American Liberty
Stephen Miller, the misguided immigration-obsessed Rasputin encouraging President Donald Trump’s authoritarian overreaches to drive from the country people who the administration insists (but does not want to prove) are here illegally, has floated the administration’s most tyrannical trial balloon yet: stabbing the very heart of what’s decent in the Western legal tradition by saying the administration can and ought to eliminate the writ of habeas corpus in order to evade legal niceties preventing them from deporting as many people as they want, as fast as they want to.
As Jacob Sullum reported at Reason last week, Miller’s untrue attempt to define illegal immigration as the sort of “invasion” that the Constitution does allow as an excuse to suspend the writ (though constitutional construction strongly suggests only Congress can actually do it) is prerejected by multiple federal judges, who have noted that “Trump’s understanding of ‘invasion or predatory incursion’ is inconsistent with the law’s historical context and with contemporaneous usage, including the definition of ‘invasion’ reflected in dictionaries, correspondence among the Founders, and the Constitution itself.”
The writ of habeas corpus—in essence requiring the state to provide reasons and evidence before a court for holding someone in custody—is sensibly described commonly, as in this 1902 article in The American Historical Review as “one of the important safeguards of personal liberty, and the struggle for its possession has marked the advance of constitutional government.”
One may quibble because the original Magna Carta specifies this as applying to “freemen,” the positive trend in Western law has been applying its best standards to all people and in America everyone ought to be in essence a “freeman.” Centuries ago our English legal tradition explicitly included in that Magna Carta that the King agreed that no one should be “taken or imprisoned…or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land.”
The libertarian movement has been infected by a heresy in the past few decades, springing from the writings of Hans-Hermann Hoppe, that allowed people temperamentally opposed to changes in the ethnic background of the people who live in this country to square a desire to manage that variable to their preferences with a self-image as a complete defender of total liberty.
The argument is more or less that a government should be able to, and ought to, behave as a private property owner of the public property it controls, especially when the restrictions it would impose seem to be wanted by a large number of the citizens of the country in whose name they manage the property. Following from that dubious proposition is the notion that it is no more a violation of the principle of nonaggression for a government to physically bar or remove someone from America who had committed no actual harm to any individual’s person or property than it would be for you as a private homeowner to do the same barring or expulsion of someone you consider an intruder from your house or yard.
It’s a shoddy ar
Article from Reason.com
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