Since the Enlightenment, the Anglosphere has had a laudable commitment to due process, which means opposing the brutality of group punishment. But what happens when that commitment leads to societal suicide? Our Founders cannot have intended this, especially regarding those people who ignored due process to enter America illegally.
In 73 BC, 70 slaves escaped from a gladiator school in the town of Capua, in central Italy. They spent the next two years attacking various towns and encouraging slaves to revolt and join them. This was the beginning of the Third Servile War.
By 71 BC, the force numbered 120,000, had at its head the former gladiator Spartacus, and had become a formidable foe, defeating a number of Roman legions on the battlefield. It was then, with much of the peninsula living in abject fear of both the rebels and their own slaves, that the Senate appointed Marcus Licinius Crassus as Rome’s general commander.
Crassus was brutal, reviving the ancient ritual of decimation. Decimation takes responsibility to an extreme, for it requires that, as a group punishment (often for losing a battle), members of the group will kill 10% of the members. While it’s unclear exactly why Crassus utilized decimation —he ordered the deaths of up to 4,000 men out of his force of almost 40,000 —the result is clear: His men feared him more than the enemy. They defeated Spartacus and crucified his last 6,000 men along the Appian Way.
Grok” src=”https://images.americanthinker.com/my/mymeor3gas73fb4lu2n1_640.jpg” width=”550″ />
Image by Grok.
That one in ten responsibility ratio has been a defining maxim of American law since before there was an America, although not in the same direction. In the mid-18th century, William Blackstone published his Commentaries on the Laws of England, which became a foundational element of English and later American law.
In Commentaries, Blackstone draws on the Old Testament to turn Rome’s commitment to group punishment on its head. Blackstone’s Ratio stated, “It is better that ten guilty persons escape than that one innocent suffer.” This maxim was picked up by Ben Franklin, stating “That it is better 100 guilty Persons should escape than that one innocent Person should suffer…”
John Adams put it like this:
It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished…when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.
With all due respect to Blackstone, et. al, I disagree. My disagreement is perhaps best personified by my favorite quote, attributed to Voltaire, “Perfect is the enemy of the good.” (Voltaire actually said, “the better is the enemy of the good.”)
There is no system that is perfect, which led Blackstone to say that the ratio of good to bad should be 1 in 10 and Franklin to say that it should be 1 in 100. But both numbers are arbitrary. How about 1 in 2 men, or 1 in 1,000, or 1 in 1,000,000? If not, why not?
That maxim sounds noble and virtuous, but civil society cannot survive such a caveat. While society and the government should do as much as they reasonably can to ensure that no innocent men are going to pay for a crime they did not commit, the reality, again, is that imperfect men make imperfect systems.
Why does any of this matter today? Because our Constitution is not a suicide pact.
Over the last 4 years, over 10 million illegal aliens invaded the country. Over the previous 30 years, another 20-30 million came. In total, there are approximately 35 million illegal aliens in the United States, and we finally have a president who has decided to take on the Herculean / Sisyphean task of deporting them.
And now that someone is trying to do something about the cancer of illegal immigration, the left is throwing roadblocks in the way seemingly every other day. The rationales are varied, but a fundamental argument is “Due Process.”
Due Process is an important element of American history and jurisprudence, but like the Constitution, it’s not a suicide pact.
Thirty-five million illegal aliens are 10% of the American population. Judges across the country are telling the administration it must exercise Due Process as to each one of them before any of them can be deported.
That is simply not feasible. Between scheduling court dates, conducting court cases, and waiting on the appeals process, there’s literally no way for the American judicial system to handle that number of cases.
If each case could magically be fully adjudicated in just one day and the government could deport 10,000 people a day, it would take a full decade to deport all the illegals already here. But they don’t take one day. In most circumstances, the deportation process can take months and often takes years.
But we’re told that without Due Process, it’s possible that someone legally here, or even an American citizen, could be deported. And that’s true; it is possible. But is that a reason not to expedite deporting the 35 million illegals in the United States? No.
To say yes would be basically to treat the United States the way blue states treat homeowners victimized by squatters. Across the country, we hear horror stories of homeowners whose lives are turned upside down by squatters. The owner not only loses access to or use of their homes, but they’re still required to pay the mortgage, taxes, and insurance. This can go on for years. And when the squatters finally leave —sometimes only after being paid to do so—the homeowners often find their property damaged to the tune of tens of thousands of dollars. Such situations make anyone with a functioning brain see red with fury. It’s simply insane.
Now multiply that exact scenario by 35 million, and you have America’s illegal immigrant disaster.
Which brings us back to Blackwell and Adams. One wonders if they would suggest that it’s better that 35 million immigrants remain in America illegally than one citizen accidentally be deported. What if the number were 45 or 75 million, either of which would be possible after four or eight more years if another Democrat gains the White House? At what point does “Due Process” become “Accept the collapse of the Republic”? That question must be asked because that’s exactly the position in which Democrats and swamp-dwelling RINOs have put Trump and America.
Of course, this is only an issue because activist judges across the country have overstepped their constitutional powers and embraced nationwide injunctions as the vehicle for undermining Trump.
I’ve advocated for the president to ignore the judges, but so far, he’s chosen not to do so. He is considering, however, a suspension of the writ of habeas corpus, similar to what Lincoln did in 1861. As I read the Constitution, it seems to my non-lawyer eyes that it’s only Congress that can suspend the writ,* and perhaps Trump’s planning on asking them to do it. Of course, there’s zero chance that that snake-infested swamp will do so. Or he could do as Lincoln did and suspend it unilaterally and then ignore SCOTUS.
I realize that doing so would open a Pandora’s Box of potential disasters from Democrats and RINO swamp weasels in DC, but if the leftists leave Trump no other options, is his job to sit by and watch the Republic collapse? I don’t think so. But make no mistake, we’re not here because Donald Trump is some sort of would-be dictator. We’re here because Democrats have been attempting to decimate American exceptionalism for decades.
Follow Vince on X at @ImperfectUSA
____________________
*Note from Andrea: Vince is entirely correct that the accepted way of reading the power to suspend the Writ of Habeas Corpus is that it’s limited to Congress. The reasoning is that the permission to do so is contained in Article I, which establishes both Congress’s powers and limitations.
However, one can argue that because the authority to suspend the Writ of Habeas Corpus is included in Section 9, Lincoln was correct to say that he, too, had the authority. That’s because there are clauses in Section 9 that clearly extend beyond Congress, such as the prohibition against Foreign Emoluments or the Ports Preference Clause. If these clauses do, and if the President is charged with being the Commander in Chief and front-line of national security, it makes sense that he would also have authority over the Writ of Habeas Corpus.
I’m not saying this is a good argument. I’m just saying it’s an argument.
This article was originally published at www.americanthinker.com
