Decimation, Due Process & Deportations

Since the Enlightenment, the Anglosphere has had a laudable commitment to due process, which means opposing the brutality of group punishment. But what happens when that commitment leads to societal suicide? Our Founders cannot have intended this, especially regarding those people who ignored due process to enter America illegally.

In 73 BC seventy slaves escaped from a gladiator school in the town of Caupa, in central Italy.  They spent the next two years attacking various towns and encouraging slaves to revolt and join them. This was the beginning of the Third Servile War.

By 71 BC the force numbered 120,000, had at its head the former gladiator Spartacus, and had become a formidable force, defeating a number of Roman legions on the battlefield. It was then, with much of the peninsula living in abject fear of both the rebels and their own slaves, that the Senate appointed Marcus Licinius Crassus command. 

Crassus was a brutal commander and revived the ancient ritual of decimation.  Decimation is responsibility taken to an extreme, where one out of ten members of a group are killed by the other members as punishment, often for the group having lost a battle. While it’s unclear exactly why Crassus utilized decimation – he ordered the deaths of up to 4,000 men out of his force of almost 40,000 – the result is clear, his men feared him more than the enemy.  They defeated Spartacus, and crucified his last 6,000 men along the Appian Way.

That one in ten responsibility ratio has been a defining maxim of American law since before there was an America, although not in the same direction. In the middle of the 18th century William Blackstone released his Commentaries on the Laws of England, which became a core element of English and then later American law.

In Commentaries Blackstone draws on the Old Testament to turn Rome’s responsibility decimation on its head.  Blackstone’s Ratio stated "is better that ten guilty persons escape than that one innocent suffer.”  This maxim was picked up by Ben Franklin stating “That it is better 100 guilty Persons should escape than that one innocent Person should suffer…”

John Adams put it like this: “It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished.... when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”

With all due respect to Blackstone, et.al. I disagree.  My disagreement is perhaps best personified by my favorite quote, from Voltaire: “Perfect is the enemy of the good.”

There is no system that is perfect, and while Blackstone said the ratio of good to bad should be 1 in 10, Franklin said it should be 1 in 100.  But both numbers are arbitrary.  How about 1 in 2 men, or 1 in 1,000 or 1 in 1,000,000. If not, why not? That maxim sounds noble and virtuous, but civil society cannot survive such a caveat.  While society and the government should do as much as it reasonably can in order to ensure that no innocent men are going to pay for a crime they did not commit, the reality is that no system operated by men is perfect.

Why does any of this matter today?  Because our Constitution is not a suicide pact. 

Over the last 4 years over 10 million illegal aliens invaded the country.  Over the previous 30 years another 20-30 million came.  In total, there approximately 35 million illegal aliens in the United States, and we finally have a president who’s decided to take on the Herculean / Sisyphean task of deporting them. 

And now that someone is trying to do something about the cancer of illegal immigration the left is throwing roadblocks in the way seemingly every other day. The rationales are varied, but a fundamental argument is “Due Process”.

Due Process is an important element of American history and jurisprudence, but like the Constitution, it’s not a suicide pact.

Thirty-five million illegal aliens is 10% of the American population. Judges across the country are telling the administration it must exercise Due Process before any of them can be deported. That is simply not feasible. Between scheduling court dates, conducting court cases and waiting on the appeals processes, there’s literally no way for the American judicial system to handle that number of cases. If each case could magically be fully adjudicated in just one day and the government could deport 10,000 people a day, it would take a full decade to deport all the illegals already here.  But they don’t take one day.  In most circumstances it takes months and often takes years. 

But we’re told that without Due Process it’s possible that someone legally here, or even an American citizen could be deported. And that’s true, it is possible. But is that a reason to not deport the 35 million illegals in the United States? No.

To say yes would be basically to treat the United States the way blue states treat homeowners victimized by squatters.  Across the country we hear horror stories of homeowners whose lives are turned upside down by squatters.  The owner not only loses access to or use of their homes but they’re still required to pay the mortgage, taxes and insurance.  This can go on for years.  And when the squatters finally leave – sometimes only after being paid to do so – the homeowners often find tens of thousands of dollars of damage. Such situations make anyone with a functioning brain see red with fury.  It’s simply insane.

Now multiply that exact scenario by 35 million and you have America’s illegal immigrant disaster.

Which brings us back to Blackwell and Adams. One wonders if they would suggest that it’s better that 35 million immigrants remain in America illegally than one citizen accidentally be deported. What if the number were 45 or 75 million, either of which would be possible after 4 or 8 more years of the next Democrat in the White House.  At what point does “Due Process” become “Accept the collapse of the Republic” because that’s exactly the position Democrats and swamp dwelling RINOs have put Trump and America in. 

Of course this is only an issue because activist judges across the country have overstepped their Constitutional powers and embraced nationwide injunctions as the vehicle for undermining Trump. 

I’ve advocated for the president to ignore the judges, but so far he’s chosen not to do so.  He is considering however a suspension of the writ of habeas corpus, similar to what Lincoln did in 1861. As I read the Constitution it seems to my non-lawyer eyes that it’s Congress who can suspend the writ*, and perhaps he’s planning on asking them to do it. Of course there’s zero chance that that snake infested swamp will do so.  Or he could do as Lincoln did and suspend it unilaterally and then ignore SCOTUS.

I realize that doing so would open a Pandora’s Box of potential disasters from Democrats and RINO swamp weasels in DC, but if the leftists leave Trump no other options, is his job to sit by and watch the Republic collapse? I don’t think so.  But make no mistake, we're not here because Donald Trump is some sort of would be dictator.  We're here because Democrats have been attempting to decimate American exceptionalism for decades.

Follow me on X at @ImperfectUSA

*Note from Andrea, the brilliant editor of AT with point I find quite compelling: Vince is entirely correct that the accepted way of reading the power to suspend the Writ of Habeas Corpus is that it’s limited to Congress. The reasoning is that the permission to do so is contained in Article I, which establishes both Congress's powers and limitations.

However, one can argue that because the authority to suspend the Writ of Habeas Corpus is included in Section 9, Lincoln was correct to say that he, too, had the authority. That’s because there are clauses in Section 9 that clearly extend beyond Congress, such as the prohibition against Foreign Emoluments or the Ports Preference Clause. If these clauses do, and if the President is charged with being the Commander in Chief and front-line of national security, it makes sense that he would also have authority over the Writ of Habeas Corpus.