Posted on 05/21/2025 6:59:34 AM PDT by Starman417
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 seventy slaves escaped from a gladiator school in the town of Caupa, 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 force, 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 command.
Crassus was a brutal commander and revived the ancient ritual of decimation. Decimation is responsibility taken to an extreme, where one out of ten members of a group are killed by the other members as punishment, often for the group having lost a battle. 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.
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 middle of the 18th century William Blackstone released his Commentaries on the Laws of England, which became a core element of English and then later American law.
In Commentaries Blackstone draws on the Old Testament to turn Rome’s responsibility decimation on its head. Blackstone’s Ratio stated "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, from Voltaire: “Perfect is the enemy of the good.”
There is no system that is perfect, and while Blackstone said the ratio of good to bad should be 1 in 10, Franklin said 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 it reasonably can in order to ensure that no innocent men are going to pay for a crime they did not commit, the reality is that no system operated by men is perfect.
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 approximately 35 million illegal aliens in the United States, and we finally have a president who’s 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 is 10% of the American population. Judges across the country are telling the administration it must exercise Due Process before any of them can be deported. That is simply not feasible. Between scheduling court dates, conducting court cases and waiting on the appeals processes, 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 it takes 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 to not deport the 35 million illegals in the United States? No.
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That is one of the reasons for the Preamble to the Constitution, which tragically, is virtually never cited in law. When procedural adherence to one of its dictates (such as "all persons") by assumption therefore includes illegal aliens, it results in a legal logjam that causes harm to the entire nation, it is OBVIOUS that some other remedy than a full trial for twenty million illegals in air conditioned courtrooms with bailiffs, clerks, judges and two lawyers each, is simply absurd.
The application of the Fifth Amendment standard to illegals does not assure domestic tranquility, establish justice, or secure the blessings of liberty. There is a simple reason for this: illegal aliens are not among "We the People of the United States." Wrong set. They are not participants in the social contract that is the Constitution.
Yet it is also clear from the Founders that this problem was anticipated. More on that here.
“Judges across the country are telling the administration it must exercise Due Process before any of them can be deported”
And Due Process in the case of someone here illegally is simply having a Border Patrolman or ICE agent verify that the person cannot prove he is here legally.
Deportation is not a punishment. They are not imprisoned nor fined. If they want to insist on court proceedings, they then get charged with an 8 USC 1325 violation, and they go into the justice system. It’s usually given as a choice.
The judges involving themselves in this now are District judges unfamiliar with the routine of the immigration enforcement system: the EOIR courts for example. But that’s because the usual suspects like ACLU are trying to create class actions so they can categorize illegal aliens as a Protected Class, so it ends up in Federal District court.
Trump did an end run around all that by invoking the Alien Enemies Act, and well he should: it’s an Invasion without doubt. But someone else here proposed a simple solution: recruit about 5000 new EOIR judges - lotsa lawyers in need of a job, beats chasing ambulances - and put the hearings on overdrive. If someone wants to continue their case from their home country, there’s always Zoom meetings. Meantime, they don’t stay.
If it costs a few Billion, so what. The savings are enormous. Specifically, the USA.
Stop. Your post makes too much sense. ;0
I really cannot explain how this rationale has never been pursued in law other than to sat that lawyers are so well conditioned in their beliefs they really are so incapable.
Exactly. 5 minutes is plenty.
Did you enter the country legally? No.
Can you prove you qualify for asylum right now?
Ummm....I have some.....I mean someone can....
Sorry, get out.
“Ummm....I have some.....I mean someone can....”
Yeah. That starts “the process”.
Which can be done from a coffee shop in Bogota if they want. Internet is usually available. They all seem to have phones.
And crossed what, seven other countries or an ocean to get here? Once they were outta the place they are so afraid of, that’s far enough. But Panama doesn’t have a fat welfare system. The Real Problem...
It does but that’s not the point. This is nothing more than get Trump and trying to import a pliable constituency. Democrats only care about law when it benefits themselves.
You have a person fill out a form, just like you have to fill out a 1040.
If the person lies, off to prison the person goes instead of getting an airplane ride at your expense.
A person might get imprisoned for every day they failed to depart.
Due process would come at a risk.
I proposed reassigning these District judges who have nothing else better to do be assigned to that task, but someone said that would be moving one type of robe to another's jurisdiction where they have little to no experience.
OJT is good for character building and justice calls for those who tried to obstruct it to serve it instead.
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