The Bill of Rights Was Not Written for Citizens Alone

The piece in Reason opens with a proposition that should not be controversial: constitutional limits on federal authority are not partisan matters. I am told the argument proceeds from there to a hard claim — that Immigration and Customs Enforcement has conducted itself in ways that shred the Bill of Rights. I cannot verify every particular from the brief provided to me, so I will mark what follows as inference drawn from the shape of the argument, not as settled fact.

But the shape itself is familiar enough to demand attention. The Bill of Rights does not say "citizens only." It speaks of persons, of the people, of the accused, of the searched, of the detained. Those who drafted that document — and I confess a particular regard for their work, having presided over the convention that produced the Constitution they amended — understood that a government disciplined only when it acts against its own recognized members is no discipline at all. A power asserted against the vulnerable stranger is a power practiced, refined, and eventually turned upon everyone else.

I have always held that faction is the great slow poison of free government. The toxin here is a cousin of faction: the habit of treating constitutional principle as a political preference, to be honored when convenient and suspended when the other side objects too loudly. Reason is correct, as far as the headline carries us, that defending due process for the unpopular is the most conservative act imaginable — because it conserves the thing that actually matters, which is the structure of liberty itself.

Consider what precedent is made when an enforcement agency learns that speed and volume of action shield it from accountability. Precedent, once set in the direction of unchecked power, does not quietly retire when the emergency passes. I saw this in the conduct of armies; I saw it in the temptations placed before executives. The institutional habit of overreach outlasts any particular administration. That is precisely why the remedy must be insisted upon now, not deferred until a more politically convenient season.

There is also the matter of civilian oversight — a principle I regarded as non-negotiable in military affairs, and which extends by clear logic to any armed agency of the executive branch. An enforcement corps that answers to no writ, that moves faster than courts can review, that treats judicial process as an obstacle rather than a safeguard, has acquired a character that free government cannot long survive.

I will not render a verdict on the specific conduct described, because the brief I have been given does not supply sufficient particulars. What I will counsel is this: every senator, every representative, every governor, and every citizen who considers themselves a guardian of limited government should ask, plainly and without partisan calculation, whether the authority being exercised today is the authority they would wish to see exercised by every administration that follows. If the answer is no, the time to say so is before the precedent hardens, not after.