| I don't doubt that 45 would -- if he could -- suspend the 14th Amendment rights guaranteed to all "persons" (not just citizens -- please read, GOP wing-nuts!) whenever, and whereever, they seek asylum. Deplorable, for the chief law enforcement officer in the US.
Even so, I do know that he and his people are well-aware that his Sunday tweet is plainly an impossibility. So instead of wasting my precious "troll-oppo" time on it, I will quote the amendment itself -- ignore 45, and run a hope-filled video (at right). . . . .nor shall any State deprive any person [not just a "citizen"] of life, liberty, or property, without due process of law; nor deny to any person [not just a "citizen"] within its jurisdiction the equal protection of the laws. . . . To be clear, I am very grateful that Professor Tribe and countless others have already effectively shut him up on this (whilst I was off-grid all weekend). So now, I may indulge the luxury of leaving it all, right there. Onward, to a flawlessly cool June Monday. Be excellent to one another, and don't be afraid to throw your share of sand into the gears, in favor of the Resistance -- from here on -- of course, if and only if you think kidnapping babies is beneath the dignity of the most powerful nation on Earth. नमस्ते |
Monday, June 25, 2018
I Am Conflicted -- About Offering A Substantive Response To Trump's Alarming Comments Rejecting "Due Process"... He Is Clearly Trolling(?)
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I thought that the 14th amendment extended due process to states and that the 5th amendment covered the federal government. Am I wrong?
N.B. Fifth amendment also covers any person and not just citizens.
Ahh. . . your observations are accurate, Anon., but the protection of "aliens of another state" (meaning Mexico, etc., in eighteenth century nomenclature) was thought to emanate from the 14th -- not the fifth -- amendment. [Recall that the first ten amendments, when written, did not cover people of color, under the specious theory that the slaves were non-human. And some of the amendments were thought not to apply to women.]
But as the law has developed, here into the 20th century, and especially beyond, people usually refer to the fifth as preventing compulsory self-incrimination (and in this context, an affirmative claim for asylum is civil, not criminal), and so, the fourteenth is usually cited as the basis, in an asylum petition.
Now, if we were to accept Trumpian ("up is down" Orwellian framings) nonsense -- then the entry into the US of the asylum seeker is itself a crime (not a misdemeanor, despite the clear law to the contrary, in Flores, and host of other cases -- including US Supreme Court cases) -- and yes, that criminal proceeding could not move forward, unless the fifth amendment is honored. But as you well-know, there is a due process clause in the fifth amendment as well.
Good stuff!
Namaste. . .
I should also say that the fifth has no equal protection clause, while the 14th does. . . And that is of great use in asylum claims.
Namaste!
While I understand your points and their background to the development of the 14th. It still seems to me that a straight forward reading of the 14th appears to refer to US states and not foreign states. For how can the US gov't apply US law regarding rights to a foreign country. So I would still would take the position that even aliens are persons and are afforded due process under the 5th for civil procedures and that the 14th extends this equal protection to procedures by states against foreign persons. Although I thought that we were dealing with Federal civil proceedings regarding asylum seekers and not state proceedings.
But then I'm not a lawyer and know that case law and interpretation doesn't always match what I might think the plain meaning of something might be.
I do hear you, and I'd simply observe that the US Supreme Court has grafted much of the fourteenth amendment back into the bill of rights (i.e., the first ten amendments), and vice versa.
Thus, there is much judicial gloss -- on those very words you've accurately read in those amendments.
It is the undertaking of an entire year of law school classes, to fully understand how the courts actually use the two, together. And thus beyond the time I've allotted -- and the ken -- of this comment shortish section. [It really isn't particularly germane to the notion that Trump cannot do what he threatens to do, after-all.]
Suffice it to say, for asylum seekers in particular, it is very important to graft the fourteenth amendment "equal protection" analysis into a claim against ICE and INS when litigating the issue of whether a person or family will be allowed to enter, or stay -- in the US.
But you are not wrong. . . to think that states are also bound by the 14th amendment.
After the civil war, that was the animating idea of the fourteenth, in fact -- to keep primarily southern states from abridging the rights of people of color. But it has grown well-beyond that, in the 170 years since.
And it has seen a vigorous new life, in the last quarter of the 20th century, as a tool for civil rights, system wide (not just aimed at the states). Though in the main, until this moment (45's presidency), there hadn't been a lot of need to cajole the relevant federal actors -- on equal protection. It used to be, pre-2017, that the feds believed in equality.
Sadly, now there. . . is reason to dust it off, and use it -- against this latter-day George Wallace, now residing at 1600 Penn.
Namaste. . . .
Thank you. I think I see where this might have come from. (Of course I'm just guessing) The juxaposition of equal protection with due process would imply that it should also be understood to apply in other instances where the term due process is used, i.e. the 5th. Which would make it applicable to the Federal gov't.
And, to be sure. . . ever since 1953, the question, according to the USSCT, has been. . . how MUCH process is "due" -- to a non-citizen who arrives at our door, seeking to breath free(er) air. . . .
If OTOH, one can get to an "equal protection" of law claim/posture -- then the non-citizen is "due" just as much process as a citizen would be allowed: a full trial on the merits; the right to take liberal discovery about impermissible motives of the 45th president, the ICE actors, etc., etc. . . .
Good dialogue here, Anon.!
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