Civil Liberty and Football

Lately  have been spending too much time watching football on television. It has helped take my mind off what might happen to civil liberty during the upcoming Trump administration. By civil liberty I mean the kinds of activity that are authorized or outright protected by our Constitution. Between beers – or maybe because of them – I realize that football provides some metaphors for talking about civil liberty in our political moment.

One thing I’ve noticed these days is that Americans don’t get too excited over the loss of civil liberty when it is other people who are losing it. Contrast this with the period in the 1780s when the draft Constitution was being debated in the states. It was all anyone could talk about. And ratification would have been rejected if a bill of individual rights that protected everyone had not been added.

Constitutions are supposed to set out the fundamental structure for the operation of a society, and in our case this includes the rights individuals can enjoy. But none of these rights is absolute. Because our Constitution is a political document, not a sacred text brought down from the mountain, the meaning of a particular provision can change depending on how much attention the political moment gives it, and whose claims to meaning are supported by political power.

So where is the boundary line for the meaning of fundamental rights at any moment? The appropriate football metaphor is “line of scrimmage.” The tug and pull of politics have moved that scrimmage line on civil liberties back and forth over the years. Sometimes this results in a “new” interpretation of the Constitution moving the line in one direction. The recent loss of a woman’s right to choose is an example. At other times powerful political movements result in constitutional amendments moving the line in a different direction. Prohibition and women’s suffrage are examples of this.

Nothing better illustrates the power of politics to determine civil liberty than the right of free speech. The First Amendment unequivocally states that “Congress shall make no law abridging the freedom of speech, or of the press.” No law means no law, right? Well, no, the whole history of the First Amendment has been one long process of carving out disfavored speech unworthy of protection at a particular moment. Obscenity and hate speech are examples. Politics drives this process.

At the outbreak of World War I, it was a federal crime to say anything that had the natural tendency to cause insubordination or disloyalty in our military forces. Under that law, the socialist Eugene Debs went to prison for praising others who had encouraged refusal to register for the draft. Fast forward to 1968, when the sons and daughters of the middle-class were in the streets protesting the Viet Nam war. Then the Supreme Court ruled that even expressly counseling draft resistance was protected speech. The connection between the political moment and the outcome of these cases is unmistakable.

Another useful football metaphor is “the red zone.” That’s when one team has the ball inside the 20-yard line of the other team. Big things are likely to happen when a team is in the red zone, but whether this will be good or bad depends on which team you’re on. I can’t help feeling that Trump is in the red zone when it comes to immigration. He has promised to deport millions of undocumented immigrants and thinks he has the mandate to do so. We’ll see if he does.

It will probably be an unpleasant shock to many in the new Trump administration that non-citizens – even unlawful immigrants – have Constitutional rights. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

Despite some small movement in the line of scrimmage, the Supreme Court has usually ruled that aliens are entitled to a hearing before being deported at which they must receive an explanation of the reasons proposed for their removal, have the assistance of counsel, introduce evidence and cross-examine witnesses, and appeal an unfavorable ruling. If we are a nation of laws, these deportation hearings cannot be sham proceedings where nothing matters but the government’s desire to eject the alien.

Trump suggests that he will declare a national immigration emergency — a truly fictional state of affairs — but that kind of declaration is necessary for him to use military resources for the detention and removal processing of aliens. He may use other fictional reasons to override the due process rights of detained aliens, believing that the political moment strengthens his hand.

I think the new administration will run into significant trouble in the courts if it tries to bulldoze civil liberty using overheated rhetoric and a false narrative. One or two examples of criminal aliens don’t make the case that we have been invaded. And I believe the American people will not lend political support to peremptory or cruel treatment of immigrants. We will throw a flag for unnecessary roughness.

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