Making the Constitution Meaningless…Again

Earlier this week, the Supreme Court, in an unsigned 6-3 decision, overturned a lower court order and refused to halt the Trump administration’s grabbing up supposedly illegal immigrants and immediately shipping them to countries other than their own. These were not cases of migrants from, say, Honduras being sent to Nicaragua, but rather to hellholes halfway around the world. Since those caught in ICE’s net are essentially thrown onto airplanes without even stopping for the bathroom, people who might have been arrested by mistake and even be United States citizens, have no chance to prove it before they are sent to destinations where they have no roots, do not speak the language, and will likely either die or rot. (After the ruling, Trump lawyers returned to the Court to request permission to move eight detainees from a Djibouti military base to South Sudan.)

Gratuitous cruelty foisted on innocents is despicable enough, but in some ways this treatment of those who were actually in the country illegally is worse because it violates what had become a bedrock Constitutional principle that everyone—citizen, non-citizen, even violent felon—is entitled to what is now euphemistically called “due process of law.”

That guarantee, among others, was written into the single most important statement of equal rights this nation has ever produced—the Fourteenth Amendment. Ratified in 1868 over the ferocious opposition of white supremacists, including the sitting president, Andrew Johnson, the amendment was drafted and enacted as a reaction to not only the end of slavery, but also the adoption by defeated Confederate states of “Black Codes,” which returned newly freed slaves to a status that was slavery in all but name.

Section 1, which is by far the most important and has spawned reams of jurisprudence reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.”

There is not one of these lofty phrases that is not under assault.

The first sentence, which I and others have written about extensively, establishes “birthright citizenship,” a principle that predates the amendment and has actually existed since 1787. In the original Constitution, Congress was charged with creating rules for naturalization but citizenship remained undefined, the delegates assuming that anyone born within the new nation’s borders would be a citizen. The Fourteenth Amendment merely codified what had been standard practice, at least for white people, and made certain it applied across racial boundaries. But that is not good enough for at least some of the current conservatives on the Supreme Court and will be tested, likely in the coming term.

“Privileges and immunities,” was undermined in 1873, when, in the Slaughter-House Cases, the Court, through Justice Samuel Miller, was trapped into defining state citizenship as distinct from national citizenship. This split allowed states, mostly in the South, to enact any variety of laws that would have run afoul of a national standard. Privileges and immunities has rarely been used since.

But in many ways, it was not needed because of the power of the final two clauses, “due process” and “equal protection.” These have been the most widely relied on and are now under the greatest threat. Unlike the first two, which refer to citizens, the final two apply far more broadly, to “persons.” This was no accident. Those who drafted the amendment and those who voted for it recognized that the intent was to create a fair and equitable legal system for anyone who was subject to United States law.

Equal protection and due process have been employed to guarantee everything from voting rights to interracial marriage to the ability to buy a house in a “restricted” community. These two guarantees have been the most powerful weapon available for the federal government to thwart efforts by states, local governments, and private individuals to create a two-tiered system of justice. One or both have been at the core of virtually every major civil rights decision in the past century.

Although both due process and equal protection refer only to state action, each was eventually expanded to prevent end-running by non-government entities. In 1944, for example, in Smith v Allright, the Court banned “white primaries,” which had allowed a private organization—a political party—to set discriminatory rules for primaries, which in one-party districts were a de facto general election.

But due process and equal protection have been highly controversial as well, and on both ends of the political spectrum. In Citizens United, for example, the left decried the use of equal protection to grant corporations free speech rights, while the right denounced Miranda v Arizona as a means by which violent felons could escape punishment. But for the most part, both due process and equal protection have created a baseline that garnered at least tacit agreement by both sides.

In this case, however, that baseline has been abandoned. Regardless of all the justifications offered by the Trump administration, be they gang membership, drug dealing, or even outstanding arrest warrants for serious crimes, denying an accused—because that’s what those who are grabbed off the streets actually are—even a hearing in court before punishment is meted out is a gross violation of Constitutional mandates and would not previously have passed judicial muster, certainly not in peacetime.

This is not incarceration after arrest while awaiting trial, but instead skipping the court system entirely and moving right to sentencing. It is a distinction that the six conservatives who refused to intercede in Trump’s effort to make life as utterly miserable as possible for those who are arrested, and those who are not, chose to ignore.

Trump’s ham-fisted attempt to terrify migrants, even those who have lived here for decades, raised families, and lived exemplary lives, and the Supreme Court’s willingness to let him do it, makes an unfortunate fact clear. The Fourteenth Amendment, once a luminescent example of America’s determination make Jefferson’s soaring words in the Declaration of Independence true for all Americans, has come to be viewed by all too many on the right as merely an inconvenience.

This should not be a surprise. Today’s Republican Party seems to view the entire Constitution the same way.