(C) Common Dreams
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Illegal aliens have rights too [1]
['Doapp', 'Mike Hlas', 'Orlan Love', 'Tom Barton']
Date: 2025-05
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No party ever completely lives up to its principles. But we Republicans have always advertised ourselves as the defenders and believers in individual rights, personal responsibility, and small government.
I was a conservative Republican long before Donald Trump became a Republican, joined the Reform Party, became a Democrat, became a Republican again, became an independent, and finally returned to the Republican Party. But after reading this column, I’m sure some of my Republican friends will accuse me of being a RINO — a Republican in Name Only.
So today, I suppose I shouldn’t be shocked — but I am saddened — that many of my Republican friends are cheering as President Trump floats the idea of suspending habeas corpus. Some of you may be wondering: What is habeas corpus, and what would suspending it mean?
Article I, Section 9 defines some fundamental rights, forbidding bills of attainder (laws declaring people guilty without a trial), forbidding ex post facto laws (laws punishing actions that were legal when committed), and protecting the Writ of Habeas Corpus. Habeas corpus — Latin for "you should have the body" — means that people have the right to appear before a judge to determine whether they are being lawfully detained.
Specifically, Article I, Section 9 says:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
William Blackstone called habeas corpus the “Great Writ of Liberty.” It is a fundamental part of due process, ensuring that the government cannot detain someone without a lawful reason. It is not an American concept. Habeas corpus has its origins in English law, and many argue that it predates the Magna Carta. Habeas corpus is not absolute; it can be suspended. The Constitution allows suspension only in cases of rebellion or invasion, when the public safety may require it.
Suspending habeas corpus has always been controversial. One major controversy is over who has the authority to suspend it. The right is mentioned in Article I of the Constitution, which defines the powers and limits of Congress. Some have argued that only Congress has the power to suspend habeas corpus. President Lincoln suspended it on his own in 1861 during the Civil War, and two years later, Congress passed the Habeas Corpus Suspension Act of 1863 to formally authorize it. President Grant suspended habeas corpus in parts of South Carolina in 1871 to combat Ku Klux Klan violence. These are the only times the writ has been suspended on US soil.
The United States also suspended habeas corpus in the Philippines shortly after the Spanish-American War and in Hawaii after the attack on Pearl Harbor — both of which were U.S. territories at the time. Though habeas corpus was not formally suspended on the mainland, the internment of Japanese Americans (the majority of whom were U.S. citizens) under Executive Order 9066 during World War II had much the same effect.
Last week, White House Deputy Chief of Staff Stephen Miller indicated that the president was considering suspending habeas corpus. In a congressional hearing earlier this week, Homeland Security Secretary Kristi Noem was asked if the current state of illegal immigration into the US met the “invasion” requirements necessary to suspend habeas corpus. Noem’s answer,
I believe it does.
The Department of Homeland Security boasts on its website about the “100 Days of the Most Secure Border in American History.” This hardly sounds like the kind of invasion that would justify suspending the writ of habeas corpus.
Of course, the reason the administration is floating this idea is to take away due process rights and expedite the deportations of illegal aliens. Some of my Republican friends will read this and say, "Wait a minute — illegal aliens don’t have rights under the U.S. Constitution." I hate to break it to them: they do!
Most Iowans will remember Mollie Tibbetts. She was a University of Iowa student who disappeared while jogging in Brooklyn, Iowa, in 2018. I remember seeing posters with her picture all over central Iowa. Eventually, an illegal alien was convicted of her murder. Even though this was a heinous crime, the defendant, whom I will not name, was in the country illegally and had rights under our constitution.
He had rights under habeas corpus (Article I), but there was plenty of evidence to warrant his arrest and pre-trial detention. He was protected against unreasonable searches and seizures (Fourth Amendment), but there was probable cause to search his vehicle. He had the right to know the charges against him, to defend himself, to be tried by an impartial judge, to have counsel, and to receive due process (Fifth and Fourteenth Amendments); yet, he was still found guilty. He had the right to a fair trial (Sixth Amendment), where he was found guilty. He was protected against cruel and unusual punishment (Eighth Amendment), but he will spend the rest of his life in jail. His rights did not prevent justice from being served; they ensured that it was.
According to the CATO Institute, both legal and illegal aliens commit crimes at a lower rate than U.S. citizens. Even so, I want to see violent, criminal aliens (legal or illegal) imprisoned, deported, or both, just as much as the next Republican. But I believe that our constitution and laws are robust enough to accomplish this without trampling on fundamental rights.
David Chung is a Gazette editorial fellow.
[email protected]
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