Conservatism Demands Due Process, Even for Illegal Aliens

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In this episode, we delve into the importance of due process rights for all individuals, including those accused of being illegal aliens. We explore the legal and ethical foundations of due process, discuss its role in protecting individual freedoms, and analyze the implications of denying these rights to illegal immigrants. Join us for a thoughtful discussion on why upholding due process is essential for a just and equitable society.

Episode Transcript

Speaker 1 (00:00):
Welcome to the Conservative Opinion Podcast
brought to you byConservativeOpinioncom.
Now here's your host, jordanRickards.
Hey everybody, thanks forjoining us.
Today's topic why due processmatters, even for illegal
immigrants and I know that thisis a very controversial topic
because you hear illegalimmigrants and your first

(00:21):
thought is, well, they're on theother side and if they're here
illegally they don't have anyrights.
But we got to think about this,because how do you know someone
is here illegally without dueprocess?
All right, so that's today'stopic why due process matters,
even for illegal immigrants.
There's a strain of thoughtgaining popularity among we
conservatives, of all people,that seems as though it were

(00:44):
ripped straight from the pagesof a Joseph Heller novel, and
the idea is this Illegalimmigrants are not entitled to
due process because they are, bydefinition, here illegally.
Now, that sounds tidy and final, even satisfying to those who
conflate brevity with clarity.
But the logical defect in thatassertion is not only
self-evident, or at least itshould be, it is

(01:06):
constitutionally and morallyindefensible.
It demands closer examination,not because it is persuasive,
but because it is dangerouslyseductive to those who ought to
know better.
So let's start with the basicquestion how does the government
determine that someone is hereillegally.
And this is not a trick, it'sthe very crux of the matter.
Without due process, withoutsome procedure by which a person

(01:28):
can assert their legal status,how does the state distinguish
between the citizen and thenon-citizen, the visa holder and
the visa overstayer, therefugee and the trespasser?
Without that process, thegovernment doesn't need to prove
its case, it merely needs tobelieve it, or at least claim to
.
And once we accept that premise, we are no longer in the realm

(01:50):
of law enforcement, butsomething closer to
inquisitorial fiat.
Something like well, we knowyou're here illegally, because
it's illegal for you to be here,okay, but what if it isn't
illegal for me to be here?
What if I'm a citizen?
Well, too bad, you don't get asay.
See, that's the catch-22.
The very process by which youwould assert your right to be
here is the same one they'vedecided you're not entitled to

(02:11):
use.
It's indistinguishable fromdeclaring someone guilty of a
crime and then denying them atrial because they are, after
all, guilty, okay.
But how do we know they'reguilty if there was no trial?
Well, because we said so, caseclosed.
I'm sorry, but that sort ofthinking, if you can even call
it that, betrays not onlyconstitutional ignorance, but a

(02:32):
deep confusion about whatconservatism is supposed to mean
.
One might expect this sort ofargument from some frothing
activist who believes theConstitution is a living
document and that the FirstAmendment should be rewritten to
spare people's feelings ordeleted altogether, but from we
self-styled conservatives, frompeople who claim to revere the

(02:52):
founders, the love of theConstitution, to defend our
system of ordered liberty.
Conservatism, if it meansanything, is the preservation of
hard-won principles, especiallywhen they are difficult to
uphold.
It's not conservative to saythat due process should be
discarded under certaincircumstances.
It's radical, it isrevolutionary.

(03:17):
I wrote on a similar subjectrecently in the essay that
judicial defiance is not aconservative principle, the idea
there being that courts protectour rights.
So to defy courts is to destroythe very mechanism in place to
secure our freedoms.
Due process is the right to getto court in the first place.
Without that, what stops thegovernment from simply declaring
that you are here illegally andshipping you off?
But I'm a citizen.

(03:38):
You protest, but your protestis never heard because you're
never allowed to go to court.
So what good is your legalstatus absent the legal
mechanism to assert it?
Due process, by which we meansimply notice and an opportunity
to be heard is not somebureaucratic nicety to be
dispensed with when it slowsthings down.
It is the very mechanism bywhich truth is separated from

(03:59):
assumption, justice fromvengeance, and government from
the people.
And when the state claims theauthority to act unilaterally—to
detain and deport without thatprocess—it isn't just the
immigrants who are at risk, it'sall of us.
Ice does not carry a magicaltruth detector and the
government is not virtuous.
Have we learned?

(04:20):
Nothing Is not the basicassumption of conservatism
rooted in a healthy distrust, ifnot outright disdain, for
government?
Mistakes happen, names match,passports are forged, social
security numbers are stolen,citizenship records are wrong,
scores are settled, politicianscan be vindictive, government is

(04:41):
weaponized against politicalopponents.
And if the government has noburden to prove, no hearing to
hold, no judge, to convince,only a van to load, you may find
your rights disappearing, notwith a bang but with a shrug.
Yes, of course borders must beenforced.
Yes, illegal immigration is amassive problem.
Yes, the system is broken.

(05:02):
Yes, illegal immigration is amassive problem.
Yes, the system is broken.
But no conservative solution tothese problems should require
us to break the system further.
That includes theconstitutional guardrails that
prevent the state from becominga creature of its own
convenience.
I do not suggest that thisrequires full-blown trials for
every person in everycircumstance, nor months and

(05:23):
years of waiting for a trialdate.
Given the scale of the illegalimmigration problem and
practical concerns, we can havesummary proceedings, like, for
example, some states do indomestic violence cases, which
are resolved in a matter of days.
But at least they are resolvedwith the parties having been
given an opportunity to berepresented and having appeared
before a judge.
The impulse to cut corners inpursuit of justice is

(05:45):
understandable, but it isprecisely that impulse which due
process was designed torestrain.
A society that grants thegovernment unchecked power over
the illegal immigrant grants itover everyone, if none are
provided the opportunity toprove who they are.
I don't trust the governmentalways to get it right and never
to prosecute the innocent.
I have prosecuted, I'vedefended.

(06:07):
The system requires checks andbalances and if we do away with
those, the question of who isand isn't a citizen will matter
a great deal less than the factthat none of us have any rights
left to defend.
Thanks very much for listening.