Monday, February 23, 2009

The rights of illegal aliens: alpha to omega.

The Fifth Amendment to the Constitution of the United States:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article 2, Section 4 of the Constitution of the State of Arizona:
Section 4. No person shall be deprived of life, liberty, or property without due process of law.

In Yamayata v Fisher, 189 U.S. 86--one of a string of very sad, anti-liberal decisions which set the stage for our modern immigration problem--the U.S. Supreme Court affirmed that executive-branch administrative hearings constitute due process in immigration cases.

In other words, suspected immigration-law violators may not be deprived of life, liberty, or property until they receive their fair administrative hearing from the Department of Homeland Security's Immigration and Customs Enforcement division. That should settle the matter.

Some correspondents have offered that those who are in violation of any law are forfeit all their rights and all protection of law. They haven't used those words, but I don't believe I'm offering a caricature, either. This is alien to both our legal and our Enlightenment philosophical tradition. To fully explain how and why would make for a good academic paper, albeit one giving a silly idea more attention than it is due. Consider that outlawry was never a recognized part of the U.S common law, and that in any case the Fifth Amendment would mean that one couldn't become an outlaw without process. And also consider that under such a regime, if I find that you haven't updated that sticker in the upper right-hand corner of your license plate, I could summarily execute you. Depending on who you are, why wouldn't I? I've in the past received rather nasty threats about my political beliefs and have twice been physically assaulted. (Good thing my main hobby comes in handy when kicking of butt is in order.) I'm not a violent or aggressive person, but the Hobbesian "state of nature" is a real bitch, isn't it? You don't want to live in a world in which people think they need to pre-empt your nastiness. Make 'blogs, not war.

That brings me to my final point: the Roger Barnett matter is at least as much about the legal limits of citizen conduct as it is about the rights of the alleged visa violators he detained and terrorized. Arizona law places rather reasonable limits on both use of force and the right to detain suspected wrongdoers or violators of the law, and unless one is a police officer, common-law strict liability is in effect. More on that matter in a later post.

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