Persons and Due Process

The Crucifixion with the Virgin and Saint John, Pietro Perugino

 There are two things to keep in focus while reading this:

1. Person
2. Due process 
   

 In the liturgy for Good Friday (John 18:1—19:42), John the Evangelist reminds us that Caiaphas suggested earlier in John 11:50: "it is better for you that one man should die instead of the people, so that the whole nation may not perish."

 The divine person, Jesus, was made perfect by his obedience to God the Father. He is the measure against which all other persons are measured. And we all fall short, "since all have sinned and fall short of the glory of God" (Romans 3:23). But I take solace in a merciful Father, a concept which was wonderfully expressed in a homily by St. John Paul II, "We are not the sum of our weaknesses and failures; we are the sum of the Father's love for us and our real capacity to become the image of his Son."

 This is a high view of the human person, and C.S. Lewis does something similar in his essay/sermon, The Weight of Glory, but he includes a warning:

Meanwhile the cross comes before the crown and tomorrow is a Monday morning. A cleft has opened in the pitiless walls of the world, and we are invited to follow our great Captain inside. The following Him is, of course, the essential point. That being so, it may be asked what practical use there is in the speculations which I have been indulging. I can think of at least one such use. It may be possible for each to think too much of his own potential glory hereafter; it is hardly possible for him to think too often or too deeply about that of his neighbour. The load, or weight, or burden of my neighbour’s glory should be laid on my back, a load so heavy that only humility can carry it, and the backs of the proud will be broken. It is a serious thing to live in a society of possible gods and goddesses, to remember that the dullest and most uninteresting person you can talk to may one day be a creature which, if you say it now, you would be strongly tempted to worship, or else a horror and a corruption such as you now meet, if at all, only in a nightmare. All day long we are, in some degree, helping each other to one or other of these destinations. It is in the light of these overwhelming possibilities, it is with the awe and the circumspection proper to them, that we should conduct all out dealings with one another, all friendships, all loves, all play, all politics. There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilisations— these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit– immortal horrors or everlasting splendours. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and it is, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously– no flippancy, no superiority, no presumption. And our charity must be a real and costly love, with deep feeling for the sins in spite of which we love the sinner– no mere tolerance, or indulgence which parodies love as flippancy parodies merriment. Next to the Blessed Sacrament itself, your neighbour is the holiest object presented to your senses. If he is your Christian neighbour, he is holy in almost the same way, for in him also Christ vere latitat — the glorifier and the glorified, Glory Himself, is truly hidden.

C.S. Lewis puts the point to it. The value of a person is worth more than value of a nation. But I understand that others will disagree with me on that point, so I'm not offering a proof, or an argument. Rather, I'm giving the reasons why I chose to leave the Republican Party on Good Friday.

For as long as I can remember, I've been pro-life. I remember reading Dr. Isaac Asimov's science essays as a teenager, and in one of them he wrote, "the human being begins life as a fertilized ovum." His essay was that of a biologist explaining biology. He was not wading into the abortion debate, but I did discover later that he was pro-choice. But this small remark provided clarity for me, because at the time, people weren't clear on the moment when an individual human life begins.

As time went on, my interest continued, and the pro-life side of the issue seemed unavoidably correct. But sadly, as it seems in all contentious issues, precious few seem to be persuaded by arguments. I was drawn into political debates, and it became clear that one major party was the pro-choice party, and the other party was pro-life. In 1980, I registered as a Democrat, because that seemed to be the default in Massachusetts, but in 1995, I registered as a Republican.

In the time since, I delved into political philosophy, and I admired the Declaration of Independence when it proclaimed that "all men are created equal." And I admired Lincoln's Gettysburg Address where he reaffirmed the principle in a concrete way. Our predecessors were flawed men, and I agree with Orestes Brownson's assessment that "they builded better than they knew." Ultimately, they had inherited the Christian view of the human person.

But on the other hand, I noticed a common theme in many historical injustices. People supporting an injustice attacked the personhood of particular people. Blacks in the antebellum South were thought to be inferior, as well as the Jews and Gypsies under Nazi Germany. And it seems that the lower views of these persons as persons were the justification for denying their natural rights. And in the present, those on the pro-choice side deny that pre-born human beings are persons with the right to life.

The Fifth Amendment to the Constitution states,  "nor shall any person ... be deprived of life, liberty, or property, without due process of law." The Fourteen Amendment reaffirms the principle, "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Recently, the Supreme Court vacated a restraining order against the deportations on procedural grounds (i.e. the restraining order was issued in wrong court), but it also stated that individuals alleged to be members of an organization designated as a terrorist organization have the due process right to contest the government's detention or their removal from the United States. In the ruling, they quoted the late Justice Scalia, "'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings." I understand the frustration of many people about the previous administration's failure to enforce immigration laws, but this should not be corrected in the present by ignoring the human and constitutional rights of persons. And so I believe that the Supreme Court was correct in saying that the 5th entitles aliens to due process.

 I've engaged in several discussions with several people about the removal and imprisonment of Abrego Garcia. It's not about him specifically, but rather, it's his case that has gotten the media's attention (I doubt the Trump administration's allegations about him, but I have no desire to argue this in the court of public opinion or in the court of social media; rather, this should be tried in the third branch of government, the judicial branch). In each discussion, my interlocutors seemed to think that the word "illegal" should settle the matter with respect to a person's 5th and 14th Amendment rights. 

That is, their statement seems to be "illegal aliens do not have due process rights." But this doesn't seem to be the best formulation. I hope that they don't mean that illegal aliens could be imprisoned or forced into a chain gangs without the right to defend themselves in court for the crimes which they are charged (sadly, it is the case that Abrego Garcia is imprisoned in a foreign country without a trial). The better formulation would seem to be "illegal aliens do not have the right to contest their deportation."

Even then, I disagree. While "illegal" aliens do not have a constitutional right to be in the United States, they do have the constitutional right to contest their deportation. That is to say, with respect to due process, "illegal" is not an important modifier for the word "person" with respect to the Constitution. Rather, "illegal" is an important adjective regarding their privilege to remain in the country (and there are reasons why they might be allowed to remain, such as the claim to be a refugee). 

As I stated earlier, my aim is not to argue and to convince anyone. Especially now, this climate of polarization doesn't seem to be conducive toward the changing of minds. Once sides are chosen, they become entrenched. Rather, I wish to show why I can no longer remain in the Republican Party. The rights of persons should be respected in any civilized country. I cannot remain in any party that doesn't respect that, and it seems to me that the majority of the GOP does not respect the rights of Abrego Garcia and other aliens who entered the United States illegally.

I'll leave the final word to Justice Harvie Wilkinson, a Reagan appointee:

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.