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Wednesday, September 21, 2022

OPINION:

Watching the unprecedented, forced removals of immigrants from Texas to New York City, Martha’s Vineyard and the District of Columbia, I thought that my grandparents were fortunate to have entered the United States in an era, though xenophobic toward those from Southern Europe, that did not condone the use of government assets to dupe and kidnap them.

I write, of course, about the profoundly unconstitutional and patently unlawful public aggression by the governors of Florida and Texas who used state funds and state force to trick and coerce Latin and Central American immigrants to board state-chartered flights and bus rides out of Texas.


All the immigrants victimized by this trafficking were here lawfully. All of them seek political asylum; each was properly channeled through the immigration process; and all were awaiting court dates in Texas.

Since they are fleeing either dictatorships that deny personal liberty or corrupt governments that condone gang lawlessness that denies the right to live, each is entitled to make their case for asylum.

Until their hearing dates, each immigrant is lawfully free to move about or stay put, and each enjoys the protections of the Constitution. Among those protections are the natural and fundamental right to travel or not to travel, and the constitutionally guaranteed right to due process.

This column has recently addressed natural rights. A right is a personal individual claim against the whole world that does not require a government permission slip or public approval to be exercised. Natural rights spring from our humanity. That is their only source; and, as such, these rights are not tempered by the geographical location of one’s mother at the time of one’s birth.

Hence, the rights to think as you wish, to say what you think, to publish what you say, to associate or not, to worship or not, to defend yourself, to travel or not, to own property and to be left alone all stem from every person’s humanity. The Bill of Rights does not create rights; rather, it restrains the government from interfering with them.

The relevant protective clauses of the Bill of Rights protect each “person” and all “people,” not just Americans. In fact, the courts have ruled that these protective clauses are so expansive and powerful — based as they are on natural rights — that they compel the government to recognize the basic rights even of those here illegally.

In the case of due process, the Constitution requires the government to hold a jury trial at which it must prove fault before it can take anyone’s life, liberty or property. Government forcing or duping a person onto a plane or a bus is a material interference with the person’s liberty and is unlawful absent due process.

In a famous 1969 case called Shapiro v. Thompson, the Supreme Court characterized the right to travel — which encompasses the right to leave a political or geographical entity — as fundamental. It did so again in Plyler v. Doe in 1982. The essence of both cases is that basic human rights — here, interstate and international travel — are fundamental, must be honored by the government, and, hence, the place of origin of the person whose rights are being impaired is irrelevant.

Under our constitutional framework, fundamental rights are accorded the highest protection from government interference.

Any government behavior that offers the belief that natural rights are geographically based is oxymoronic, un-American, unconstitutional and rejects the truisms of the Declaration of Independence and the Bill of Rights. If the government takes rights seriously, it will respect and defer to the individual exercise of them.

Now, back to the public behavior of the Florida and Texas governors, both of whom are running for reelection in November. Their forcible removal of lawfully present immigrants using either a carrot or a stick is an exercise of power nowhere granted to them and expressly contrary to prevailing Supreme Court caselaw. In the case of Florida, it is simply inconceivable that its governor can control the fate and the movement of folks who have never had even minimal contacts with that state.

The use of government assets and power to transport immigrants to far-off places — 1,000 miles from the sites of their asylum hearings — for the political benefit of the governors and certainly not for the benefit of the immigrants, are acts of trafficking or kidnapping or both.

The federal statutes that prohibit trafficking and kidnapping define as criminal the forced movement or forced restraint of innocent persons for the benefit of the ones causing the movement or the restraint.

Force can be by violence, deception or the threat of violence. However it comes, the governors have engaged in acts of aggression against persons who are as lawfully present in the U.S. as the governors are.

The behavior of these governors shows their antipathy not only to natural rights but also to the Rothbardian non-aggression principle. That moral rubric prohibits absolutely all persons — individually, collectively or through the government — from initiating or threatening force or deception against any person.

I am surprised and disappointed at my small-government friends who have lauded this abuse. It is illicit to its core, and it is dangerous.

If continued unchecked, where will it stop? Can this extraterritorial use of state force strike at ordinary Americans whose constitutional protections are coequal to the lawfully present immigrants? Can the governor of New Jersey ship me to Texas because I am an unpopular thorn in his side in the Garden State? Of course not. Then neither can the Texas or Florida governors do likewise.

If continued unchecked, this constitutionally aberrant treatment of the unpopular and politically powerless as if they were livestock will be repeated in another form. As the great trial lawyer Clarence Darrow once told a Chicago jury: “We cannot sow the wind without reaping the whirlwind.” Who will these governors target next?

• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.


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