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Why A Recent Supreme Court Decision Erroneously Abridges Immigrants' Rights, And Warns of Dangers to Civil Liberty Arising Out of the War on Terrorism


Thursday, May. 15, 2003

A British critic of the monarchy, William Pitt famously observed, "Necessity is the plea for every infringement of human freedom." Fear of terrorism and immigrants, as recent cases make clear, seems to have broadened courts' definition of necessity.

Last week, in Demore v. Kim, the Supreme Court ruled that the government could detain certain legal resident aliens while their immigration hearings were pending, without having to show that they posed a flight risk or a danger to the community. The Court justified this rights-abridging decision by applying a broad definition of Congress's power to control immigration, as it has done in a string of recent cases.

Kim is based on a fundamental misconception about the Bill of Rights. Rights cannot - and should not - be defeated by broad definitions of the federal government's powers. That is not how the Constitution was understood at the time of its adoption, and it is not how it should be understood now.

Individual rights limit government powers. The fact that a constitutional power is broad provides no reason to diminish an individual right set forth in the Bill of Rights.

The Court's approach of ignoring rights to defer to Congressional powers, as illustrated by the holding in Kim, is not limited to immigration issues. The Court may also take a similar approach as it reviews cases related to the war on terrorism, presenting a grave new danger to civil rights.

The Kim Case: Neglecting Individual Due Process Rights

To see the problem with the Court's logic, it's helpful first to set out the facts of Kim.

In 1984, at the age of six, Kim entered the United States. Two years later, he became a lawful permanent resident. In 1996, he was convicted of burglary, and in 1997, of petty theft. Federal law allows the deportation of immigrants who commit certain crimes to their country of citizenship. The Immigration and Naturalization Service took Kim into custody to await a hearing to determine whether he would be deported.

Kim sought a bail hearing, but it was denied pursuant to a 1996 law. Thus, the INS never proved that Kim either would be likely to flee the jurisdiction, or would be dangerous if released - a constitutional requirement to justify the detention of criminal defendants.

Kim challenged his denial of a bail hearing as a violation of Due Process as guaranteed by the Bill of Rights. He pointed out that Due Process rights extend to all "persons," not only citizens. And he argued that due process requires that, for a detention to be valid, a judge must hold that, after an adversarial hearing at which the detainee can present his case, the detainee poses either a flight risk, or a danger if he is released back into the community. Only after the government proves these facts by "clear and convincing evidence," Kim argued, may a detainee be held without bail.

The Court said that this was the law for most detentions, but not for Kim's. Why? According to the majority, simply because Congress had exercised a broad constitutional power, and "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."

In other words, Congress' broad power over immigration means that immigrants have fewer due process rights, even though they are persons protected by the Bill of Rights.

The Fundamental Error of Kim: Rights Limit Powers, They Don't Fall to Them

Now, to see why Congress's broad power to control immigration is no excuse for abridging rights - contrary to the Court's holding in Kim - it's necessary to review a little constitutional history.

Two different perspectives animated the debate over ratification of the Constitution. The Federalists - who famously included James Madison, Alexander Hamilton, and John Jay - saw the original articles of the Constitution as enumerating the limited powers of government. In the areas where the government lacked specific powers, they maintained, the people retained a body of natural rights; as James Wilson described it, "every thing which is not given is reserved." Liberty, in their view, was safe because government was limited to enumerated powers, and those powers only.

But the Anti-Federalists, the opponents of a strong national government, sought a second guarantee of liberty. Many of them insisted that not only limited powers, but also a bill of rights would be necessary to prevent the government from eclipsing individual liberty: Writing pseudonymously as Brutus, one Anti-Federalist asked, "Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights?"

In particular, the Anti-Federalists were concerned about taxation, war, and immigration - three areas in which the original articles of the Constitution appeared to grant unlimited power to the federal government. Their concern that rights should still be preserved in the immigration context, in particular, underscores why the Demore v. Kim holding is in error.

In the end, many Anti-Federalists, such as the delegates from Pennsylvania, acquiesced to the adoption of the Federalists' articles only upon their understanding that a bill of rights, "ascertaining and fundamentally establishing those unalienable and personal rights of men," would later be adopted - as, of course, it was.

The final document that emerged, therefore, incorporated both views. Our federal government is both limited to acting within its enumerated powers and also prevented from acting where it supplants the rights explicitly set forth in the Bill of Rights.

But the decision in Demore v. Kim ignores the limits placed on power by the Bill of Rights, and thus the Anti-Federalist view, entirely. Contrary to what the Court stated in its opinion, the mere invocation of a broad Congressional power mentioned in the articles - such as the power to control immigration - does not resolve the separate question whether the exercise of such a power violates the Bill of Rights.

If it did, there would be no reason to have a Bill of Rights at all. Put another way, the right to due process was enshrined in the Bill of Rights precisely so that the federal government could not extend its enumerated powers (including its power over immigration) so as to infringe on individual liberty.

To be sure, courts must establish some limits on individual rights, at times by balancing competing rights or other interests recognized by law. But what the Anti-Federalists objected to--and what the Kim court allowed--was the weakening of individual rights by weighing them against the powers of the federal government.

As the Anti-Federalists foresaw, this sort of protection of civil liberty is no protection at all. This decision thus ignores the Anti-Federalists' view, the compact the Constitution represents, and indeed, the Bill of Rights itself.

The Supreme Court's reluctance to consider the Anti-Federalist perspective should be especially disappointing in that it is most pronounced among the justices typically favoring a limited federal government, such as Chief Justice Rehnquist.

How Kim's Error Is Being Repeated in War on Terrorism Cases

The current war on terrorism seems to exemplify an Anti-Federalist's worst nightmare. A majority of the Court sits ready to engage in a broad reading of the federal government's war powers, during a loosely defined and possibly never-ending war, all without imposing any substantial limits on account of the individual rights articulated in the Bill of Rights.

Since September 11, the Bush Administration has assumed new executive authority, and Congress has enacted new laws, and which impact on important civil liberties. It has deemed citizens Jose Padilla and Yaser Hamdi "enemy combatants," incarcerating them incommunicado and indefinitely, based merely on a suspicion of terrorist connections. And it has registered, detained, and deported thousands of immigrants - most of the time without affording them the public hearing or independent oversight that constitutional due process requires.

Yet the federal courts, thus far, have largely upheld government practices based on the (also debatable) claim that the President has broad constitutional power to conduct war. Again, the Anti-Federalists must be shifting in their graves.

The Federalist inquiry into the extent of Presidential war power is not the only question. Courts must also ask the Anti-Federalist question: Under the Bill of Rights, do persons hold rights that limit the President's power to conduct war in this manner?

Again, the federal government's war powers were of special concern to Anti-Federalists, since the original articles of the Constitution included no apparent limit on how claims to war powers might be used to eviscerate individual rights. The Anti-Federalists' response to this, again, was the Bill of Rights itself. They believed, and the Constitution represents a promise that, no argument about government powers could be used to strip persons of their civil rights, including the right to counsel and a speedy trial, or the right against detention absent a showing of probable cause that a crime has been committed.

These rights were articulated in the Bill of Rights exactly for the reason that the federal government would inevitably seek to expand its powers over time and thus diminish individual liberty. Now it is doing so, and courts have not bothered to look carefully at the Bill of Rights, preferring instead to examine only the limits of Presidential war power.

We Can No Longer Assume Courts Will Be Backstops Protecting Rights

Ironically, the Bill of Rights's existence may actually have made our society complacent when post-September 11 legislation was proposed, and decisions made. Citizens, and even members of Congress, may have assumed that if legislation were unconstitutional, courts would invalidate it as infringing rights. Thus, we have comfortably granted broad new powers to the government, indolent under the assumption that liberty is guarded elsewhere in the Constitution.

In fact, the existence of the Bill of Rights may only have extended this same complacency to the judiciary, as the Federalists worried it might. In Federalist No. 84, Alexander Hamilton warned of the dangers of adopting a bill of rights, arguing that such a list would amount to "various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted."

Hamilton was correct - courts have lately responded to Bill of Rights limits by going back to the articles of the Constitution and claiming that the federal government's powers are broader than they were intended to be.

With so much now at stake, it is time to revisit the original purpose of our Bill of Rights and robustly defend the liberties which the framers, and the Anti-Federalists in particular, sought to protect.

D. Mark Jackson is a lawyer with the U.S. Department of Labor in San Francisco. The opinions expressed in this article are those of the author, not of the U.S. Government. Mr. Jackson may be reached at

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