Our Constitution Needs Us

Because Liberty Doesn't Defend Itself

When I first saw that the US was deporting violent Tren De Aragua gang members back to their home country, I thought to myself, good!! This is way overdue. We have tolerated their presence for way too long. This gang is involved in a wide array of illegal and destructive activities, including human trafficking, forced prostitution, drug and arms trafficking, kidnapping for ransom, and extortion and robbery. They are extraordinarily violent, so of course we should round them up and kick them out. We should’ve done that as soon as we noticed they had arrived and were operating in our country.

But the deportation flights were immediately embroiled in controversy about the process. The ACLU had brought a case to U.S. District Judge James E. Boasberg arguing that the deportees' due process rights had been violated because they had not received a fair hearing ahead of the plane flight.

This story has been a good reminder to read beyond the headlines. I suspect my initial reaction wasn’t that different from a lot of other headline readers: Who really cares what the technical process is if we are getting rid of violent criminals? Good for Trump for getting creative. Good riddance!

Well, as it turns out, we should all care.

Donald Trump is attempting to use the Alien Enemies Act of 1798: This act grants the U.S. President authority to detain, relocate, or deport non-citizens from a country considered an enemy during wartime. The administration argues that the activities of Tren de Aragua constitute an "invasion," thereby justifying the use of the act even without a formal declaration of war. This interpretation is novel and has been met with legal challenges questioning its constitutionality.

Under our Constitution, individuals, regardless of nationality, have been entitled to due process rights, including hearings before deportation. The current application of the Alien Enemies Act without hearings should be causing alarm bells to ring throughout our country. Because what’s at stake with the gang deportations is our right to due process, which is literally the foundation of all of the rest of our constitutionally protected rights in this country.

Due Process is enshrined in both the Fifth and Fourteenth Amendments, and what is crucial to note is that it is afforded to ALL PERSONS, not just citizens. For the constitutional textualists out there, the language could not be more clear.

Fifth
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a 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 offence 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.

Fourteenth
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.

This goes all the way back to 1215 and the Magna Carta. It first enshrined the idea that the king could not imprison or punish people arbitrarily. English common law developed procedures for trials and hearings. The U.S. adopted and expanded these principles in the Constitution. Over the centuries, the Supreme Court has elaborated these basic principles into what we now consider the procedural due process rights.

In American law, due process means the government cannot take away a person’s life, liberty, or property without fair procedures. At its core, this includes notice, a hearing, the opportunity to present evidence and witnesses, a neutral decision-maker, and the chance to respond to opposing claims. As the Supreme Court put it in Goldberg v. Kelly (1970), “The fundamental requisite of due process of law is the opportunity to be heard... at a meaningful time and in a meaningful manner.”

There is simply no way a reasonable person can assert that putting people on a plane and flying them out of the country without a hearing is anything other than a complete denial of their very clear due process rights under the Constitution. Incredibly, individuals were identified, many without criminal records, some based on tattoos or flimsy associations - and deported without so much as a group hearing. Not even during World War II were alleged Nazis deported without hearings.

Due process is the check on raw power—a safeguard that separates liberal democracies from authoritarian regimes. Without it, government actors become judge, jury, and executioner. Without due process, we have no other rights. They all become theoretical. It’s the mechanism that enforces rights:

• Freedom of speech? Meaningless if the government can jail you without trial.

• Property rights? Gone if they can seize your home without recourse.

• Immigration protections? Hollow if people can be deported without a hearing.

Without due process, we are in the dystopian company of:

• China: Detention without trial (e.g., Uyghur camps, dissidents).

• Russia: Sham trials and politically motivated prosecutions.

• Iran: Secret tribunals, coerced confessions, no independent judiciary.

• North Korea: No legal process to speak of—executive whim is law.

There have been other shameful periods in our history where due process rights were blatantly trampled. Following the bombing of Pearl Harbor, President Franklin D. Roosevelt signed the infamous Executive Order 9066, authorizing the military to forcibly relocate and intern over 120,000 Japanese Americans, most of them U.S. citizens. There were no hearings or individual assessments of risk. The internment was based solely on ethnicity and ancestry. In one of the worst examples of the Supreme Court shirking its responsibilities and caving to popular opinion, the order was upheld in Korematsu v. United States (1944), a decision rightfully and widely condemned today.

There is something else I want to say about this involving the Ad Hominem logical fallacy (Attack the Man) I wrote about recently. The Judges involved in these very consequential cases are being barraged with Ad Hominem attacks attempting to undermine their authority.

President Trump called the Judge presiding over the Venezuelan gang member case a “Radical Left Lunatic” and called for his impeachment. And other members of his administration and party have dutifully followed suit with their own attacks.

And the Speaker of the House, Mike Johnson, has recently suggested that Congress possesses the authority to eliminate or defund certain federal courts, particularly in response to judicial decisions that have impeded President Donald Trump's policies: "We do have authority over the federal courts, as you know. We can eliminate an entire district court. We have power of funding over the courts and all these other things."​ He further emphasized that "desperate times call for desperate measures, and Congress is going to act."

This has gone on long enough. Americans of every political stripe need to speak up and put a stop to the blatant assaults on our Constitution and our Judiciary. Where are all the Republicans that were in high dudgeon when Chuck Schumer threatened members of the Supreme Court or when Democrats threatened to pack the Court?

The ends do not now and never will justify the means of trampling our Constitution. It has been abused at times and is not perfect, but it must remain our cherished safeguard against tyranny. It can only protect us if we, in turn, are willing to protect it. Now is the time to rally.