| Recently, leaders in the U.S. administration have questioned the need for due process for those accused of violating immigration law. Stephen Miller and others have even suggested that we suspend Habeas Corpus, denying due process to those who may be suspected of being in the United States illegally.
America was founded in a revolt against tyranny. Separating from the British monarchy, the founders of this great nation risked their lives so that they could be free from a government of whimsy, where the monarch could simply choose one day to change the law, to establish taxes, to quarter soldiers, or imprison someone on the basis of capricious mood.
And so, they drafted a constitution to enshrine basic rights in the bedrock of our nation’s foundation.
The First Amendment established that no law could abridge the rights of the people to freedom of speech, freedom of the press, freedom of religious expression, and freedom to peaceably gather.
And the Fifth Amendment declared that no person could “be deprived of life, liberty, or property, without due process of law.”
As Justices Antonin Scalia and Ruth Bader Ginsburg both said, the constitution affords these protections not simply to citizens, but to any person in the United States.
The Torah discusses our obligation to non-citizens on more than three dozen occasions. “There shall be one law for the citizen and the stranger who dwells among you.” (Exodus 12:49)
Judaism is grounded in the idea of the rule of law. American society was founded on the same ideal. If someone breaks the law, then the law needs to hold that person to account. The Torah declares in the book of Deuteronomy: “Justice, Justice shall you pursue.”
A free society, and indeed a holy society, is one where all are equal before the law, and the law is applied evenly and fairly, ensuring that society’s rules and order are maintained. “Do not pervert justice; do not show partiality to the poor or favoritism to the great, but in righteousness shall you judge your neighbor.” (Leviticus 19:15)
Further, the Torah provides that when someone was accused of murder, there were six sanctuary cities to which that person could flee, so that the case would not be resolved by capricious vigilantism, but by trial and due process of law.
In the aftermath of World War II, in which we saw the most hideous criminal acts of evil ever perpetrated against humanity, what would the victors choose as their retribution and reward?
They could have chosen conquest. They could have chosen loot. They could have chosen revenge of every sort.
But what did the Allies do with the most reprehensible criminals in history? They put them on trial. They ensured them due process.
Justice Robert Jackson left the bench of the U.S. Supreme Court to lead the prosecution of the Nuremberg Trials. In his opening statement, he spoke passionately about the critical choice to uphold due process and the rule of law. “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”
And years later, when Israel located the author of the Final Solution hiding in Argentina, what did they do to Adolf Eichmann? Risking the lives of elite soldiers and agents, they brought him to Israel, so that he too would be afforded due process.
If the worst criminals in human history deserve due process and a fair trial, then yes, every person, no matter the charge, should enjoy the same rights to due process and a fair hearing.
We cannot allow fear and hatred of the stranger to tempt us toward tyranny. Rather, we must instead remember the admonitions of our tradition and the wisdom of our nation’s founders. The law must be followed, and that means we ensure due process of law – for everyone, stranger and citizen alike.
Due process may be slow. It may be inefficient. But a good and just society is not defined by expediency and efficiency.
A good and just society is defined by doing what is right. |
