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Crying Children and Due Process of Law

Being a lawyer, I have long been interested in and have studied the question, where did law come from? It turns out to have been the result of a centuries long, hard struggle by people over generations as humans evolved to try to incorporate justice into their villages or tribes. Generation built upon generation, honing and improving law.

One source has long been claimed to be “God’s Law.” For example, the idea of “due process of law,” the right to a fair hearing before an impartial tribunal before judgment is found in not only in Roman law but in Christian law as well. In John 7:51 Nicodemus defends Jesus to the Pharisees who are seeking Jesus’ condemnation and death without trial. Nicodemus demands of the Pharisees: “Does our law condemn a man without first hearing him to find out what he has been doing?” (John 7:51)

Whether you are a believer or not, the Bible is a source of much human law, at least in the West. It was written over millennia probably derived from oral traditions before being reduced to writing by the Hebrews in the Torah. As worldly experience and common sense teach, one ought to be careful about arrogantly overthrowing centuries of accumulated human wisdom, or God’s law, if you so believe. Before law, my training was in science and I learned: “you may be smart, but you are not smarter than evolution.” So, I seek wisdom where it can be found to have evolved and reject it only after careful consideration.

Due process of law is required of the US Government and all of its agents by the 5thAmendment to the Constitution.

With all due deference to Jeff Sessions and his “Biblical”-based defense of separating noncitizen minor children from their parents, I think Nicodemus disagrees. I go with Nicodemus who, after all, at great personal risk helped Joseph of Arimathea ask Pilate for Jesus’ body, took it down from the cross, carried it to the tomb and properly buried Jesus. I suspect Nicodemus, who, if this story is true, surely earned his “Bible Interpretation” chops, would think due process ought to be afforded beforejudgment punishing these kids and their parents can be imposed. Involuntary separation of minor kids from their parents is, I am sorry to say, clearly a most odious punishment. A hearing before doing so seems mandated by John 7:51.

So, the law evolved, and America adopted a Constitution based on the accumulated wisdom and legal insight of centuries including that derived from Biblical sources. As Martin Luther King expressed it, though I paraphrase, law congruent with god’s law is valid, that contrary to god’s law is not. Most people obey just laws, those congruent with god’s law, without being forced to do so—it is simply right–such as the law against killing. The Constitution added the 5thAmendment in 1791 which reflects the wisdom of due process providing in pertinent part: “No person shall…be deprived of life, liberty or property without due process of law….” So far so good, consistent with John 7:51.

The fifth amendment applies to the US Federal Government and has since its adoption. Note that it covers “persons” not merely “citizens.” As a bastion of liberty and human rights in a world hostile to same in 1791, this was a proud declaration by a hearty and moral people that their government must provide due process to all with whom it dealt, not only its own citizens. “A shining city on a hill,” to be sure.

If the US federal government wants to take away a “person’s” child they must first provide due process. Due process is where you have the hanging after the trial, assuming the trial adduces evidence showing guilt or wrongdoing exists justifying hanging. America in its supreme law rejected the idea of having the trial right after the hanging, as many other countries allowed at the time, at least in part because that is contrary to god’s law, John 7:51.

Parental rights to custody and control of their children is one of the most fundamental rights protected by the due process liberty clause. In Troxell v Granville decided in 2000, the US Supreme Court, rejected grandparent’s visitation rights enforced by the state as against parental refusal and stated: “The liberty interest at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Not even grandparents can invade it and I bet most grandparents would do better with the grandkids than government caretakers. And I think common sense and the judgment of my tribe would agree. I also think most agree that parents or grandparents who put minor kids in cages are not doing a good job with the kids. Neither is government.

So, the US Federal government separating minor kids from their parents, without a prior hearing requiring evidence justifying same, seems a violation of due process of law. It appears to be contrary to John 7:51 and the accumulated wisdom of humanity.

Some argue no, these kids and parents are here illegally, everyone knows that, so no problem, they are presumed guilty. This of course violates the presumption of innocence found in the 6thAmendment. But it may also be simply wrong. Many of these parents and kids claim to be refugees protected by 8 USC §1158, a federal statutory law, International law, and treaties binding on the US under Article VI of the Constitution. See, that is what Nicodemus was talking about. First you have to have a hearing to decide if the parents and the kids qualify as refugees entitled to protection in the USA. Then, if they do not, they can be punished. Those who do, cannot.

Seems like a lot of legal mumbo jumbo to make the simple point, one every parent knows instinctively from evolution, or maybe from God: taking my kids away without first proving it is lawful, ain’t right, it ain’t right, it just ain’t right. Most parents would fight like lions to stop it and most others would agree they ought to do so, and would probably help them fight if they can.

By the way, the 4thof July is just around the corner. It might not hurt to reread the Declaration of Independence, the first Constitution of the United States. It reminds us these are “inalienable rights” endowed by the “Creator,” which legitimate government exists to uphold, not violate. It’s the American way. It is what makes America great, when we live up to it. When we do not, then we are in the swamp. In the current case a swamp deluged by the tears of children.

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Kary Love is a Michigan attorney.

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