SCOTUS recently sided with POTUS about the rights of certain immigrants who face deportation. The basic point by the court was that “neither the right of habeas corpus nor the right to due process of law requires a hearing before a judge for those turned down in their initial asylum screenings.” (See this NPR story.) I won’t comment here about the legal reasoning; this is a comment about the morality of deportations—or really, the morality of the initial acts that lead to deportations, especially those by I.C.E.
My thinking here was not spurred by the SCOTUS decision but by a line in The Man Who Fell to Earth (CE*) by Walter Tevis. For those who have neither read the book nor seen the movie (CE*), this is a story about a extraterrestrial alien who came to earth and did a fantastic amount of good for humankind—just as immigration is generally good for all humankind. (See this Economist Article, this Michael Clemens JEP article, and Bryan Caplan’s book (CE*).) The good he did was in the service of working toward helping those from his own planet, but was done peacefully—again, the norm for immigrants, who typically work for their own good or that of family in their home country, but do so peacefully. Upon his arrest, the alien—Mr. Newton—asks about the constitutional right to legal counsel. The response is startling: “you don’t have any constitutional rights. As I said we believe you are not an American citizen.” Constitutional rights only apply to citizens, we are told. Indeed, Tevis suggests, constitutional rights only apply to those whose citizenship isn’t doubted by any government officials. If a government official believes you are not a citizen, you have no constitutional rights.
I find this appalling on its own because I value morality for its own sake and only value a constitution—any constitution—if it is in accord with morality. I’d like to think all classical liberals would agree. Unfortunately, I know people with whom I am otherwise in large agreement, who do not agree. I know otherwise solid libertarians who disagree. (That shocked me when I first realized it.) Nonetheless, human persons all have value. They ought all be treated with equal respect. If a constitution suggests it’s ok to treat human persons disrespectfully, it is wrong.
My primary assertion here is simply that it is disrespectful to stop someone to accuse them of committing a crime, or even to question them about a crime, without very good reason. The question, then, is when do we have such reason? I think there are at least two requirements: First, it must be a serious crime, by which I mean someone must have been seriously harmed or be credibly threatened with serious harm. Second, the evidence must itself be both credible and persuasive to the average rational person. Absent either of these conditions being satisfied, no government official should interfere with any individual. (I mean for this to be a beefed up form of probable cause requirement.)
Turning back to deportation actions, consider that every U.S. citizen has rights and is presumed “innocent until proven guilty.” I would think that this entails that we assume those around us are innocent of the crime of entering the country illegally—or, at least assumed innocent absent the satisfaction of the two conditions indicated in the previous paragraph. But note being a resident in the US illegally will never satisfy the first of those conditions—coming into the country illegally does not on its own credibly threaten or cause any individual serious harm. (See Van der Vossen and Brennan book (CE*) and Lomasky and Teson book (CE*).) Hence, we (and the government) should assume those around us are citizens unless proven not to be. (If we do not, we assume some of our neighbors are guilty of a minor, i.e., non-serious, crime—but, again, we are supposed to be innocent until proven guilty and, more to my point, it would be a failure of respect to hassle someone about possibly having committed such a minor crime.) So we should assume that all present in the country are citizens. If we assume that, though, we don’t investigate their citizenship—we assume they are citizens. Mr. Newton shouldn’t have been investigated. He should have been thanked for all that he gave everyone else in the country. So too, we should not have I.C.E. investigate or seek out non-citizens. They should be assumed to be citizens and, indeed, thanked for what they provide the rest of us. Hence, we should not be looking to find anyone here illegally and so should not consider departing anyone.
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