Blackstone’s Ratio for Morons
Editor's Note
You cannot win a war if you don’t know you are in one. Many Republicans have joined in on the destructive Left’s complaints about “due process” in the enforcement of immigration law. Jeremy Carl argues that such engagement assumes good faith that can never be taken for granted in wartime. We must be more cautious, Carl urges, about pleas to our Constitution that come from people we know have no real interest in it.
One of the most foundational principles of English common law, which eventually became a core principle of American law, is Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.” Originally formulated in his Commentaries on the Laws of England (written in the 1760s), it was cited repeatedly by the founding fathers and is, in various ways, enshrined into law by the vast majority of America’s state Supreme Courts.
While one might quibble about the precise nature of the ratio (earlier precursors in English law had suggested similar ideas, but in different ratios, such as five to one or twenty to one) overall the principle is a sound one — one that should be applied to our immigration policy.
If we could show that one in every ten people we were deporting should in fact not be deported because they are in fact U.S. citizens, I would suggest that we overhaul our processes. Otherwise, the president and his administration should be able to deport whatever foreigners they judge to be in the national interest to deport, especially if we believe that these foreigners are here illegally.
Obviously, we should attempt to make sure that we are not deporting those who have legal status here. But we cannot tie our hands behind our backs in 99% of easy deportation cases over the 1% that present real challenges. There is a number at which Blackstone’s ratio becomes absurd. Should we let a million criminal aliens run free in our streets out of fear that one innocent man might be deported? Ten million? Twenty?
Our courts and our media have recently gotten heavily involved in the case of an El Salvadoran illegal — credibly accused of membership in the violent terrorist gang MS-13 and of involvement in human trafficking, and the subject of a previous domestic violence restraining order — who was returned to his country in technical violation of a deportation procedure (though he had already been ordered deported, and in a functioning immigration system would have been deported years ago). The Democrats have made him a cause celebre, with senators and congressmen rushing to El Salvador to attempt to “return” this El Salvadoran criminal to America.
Media accounts refer to this deportee almost exclusively as a “Maryland father” who was “wrongly deported” from his “quiet life” here in America. The clear message: This could happen to you. This could happen to anyone. This is ridiculous.
If the government somehow apprehended me and falsely accused me of being an illegal alien, I have close at hand a driver’s license, an original birth certificate, a Social Security card, my U.S. passport, and countless other documents all of which would identify me as a citizen. If for some reason that did not satisfy investigators, I could easily do a blood test to prove my relationship with family members, who are all (like me) natural born U.S. citizens and have documentation to prove it. The notion that a significant number of people (say, naturalized citizens, whom one might expect to be particularly fastidious about maintaining proofs of citizenship) would get deported falsely just because they can’t seem to provide appropriate evidence that they are in America legally doesn’t pass the laugh test. That’s all of the “due process” that should be required.
Still the skeptics will whine: “But what about the rule of law?”
Of course, we expect deceptiveness from the Left. But here the liberal Right is almost as much of a problem.
Ed Whelan of the Ethics and Public Policy Center, the longtime Bench Memos blogger for National Review Online, argues, “The Rule of Law means that people you don’t like, even terrible people, are entitled to the benefit of existing laws.” And: “Every additional day that Abrego Garcia is stuck in Salvadoran prison compounds the illegality. Rule of Law judges understand that.” Such airy invocation of high principle simply serves to advance the left’s policy preferences. The purpose of punditry is what it does.
Whelan’s National Review colleague Andrew McCarthy does a bit better, at least explaining in detail why, technically, he views the removal as illegitimate — but he still elides the central issue. The entire “rule of law” approach is overwhelmingly used as a political weapon to achieve the Left’s desired result.
McCarthy does acknowledge that there are some extraordinary circumstances where a president could justly ignore a federal court; somehow, he doesn’t think the mass invasion of our country, aided and abetted for years by one of America’s two major political parties, qualifies.
As Samuel L. Jackson says in Pulp Fiction: Allow me to retort:
President Lincoln understood better than any pundit that justice and national survival sometimes required casting aside bad-faith claims of “due process” and dubious court rulings. In response to the infamous Dred Scott decision, Lincoln questioned even the power of the Supreme Court:
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Lincoln correctly understood this type of thinking to be dangerous to America’s survival. And in Ex Parte Merryman, he directly defied the court on habeas corpus and even jailed the judge who issued it. As Harvard Law’s Noah Feldman has argued, even the Emancipation Proclamation was likely unconstitutional. But it was certainly neither unjust nor unwise.
Fortunately, key Trump officials are pushing back against the narrative pushed by the Left and the castrated Right on this issue.
Trump’s Deputy Chief of Staff, Stephen Miller, long the president’s point person on immigration, understood the situation much more clearly, saying on X:
Biden imported 15M+ illegals in 4 years. Democrats believe each alien should get a lengthy federal trial before being sent back. After we scour the country to find them. Because they are all evading arrest. A typical trial would take months to complete. Not counting appeals. This would mean even if we shut down our entire federal court system to do nothing else the process that the Democrats demand would take multiple centuries to complete. Which Democrats understand. Because they don’t want any aliens removed. They want them all registered—to vote. The judicial process is for Americans. Immediate deportation is for illegal aliens. If you break into someone’s house you don’t get to spend months or years debating your presence. Trespassers must go. And they must go now.
A day later Vice President Vance, posting on X, doubled down in the same fashion, making clear that he understood exactly what was at stake in these cases.
To say the administration must observe “due process” is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors.… Here’s a useful test: ask the people weeping over the lack of due process what precisely they propose for dealing with Biden’s millions and millions of illegals. And with reasonable resource and administrative judge constraints, does their solution allow us to deport at least a few million people per year? If the answer is no, they’ve given their game away. They don’t want border security. They don’t want us to deport the people who’ve come into our country illegally. They want to accomplish through fake legal process what they failed to accomplish politically.
Rule of law is indeed on trial — just not in the way that the Left believes. The procedural antics the Left conveniently describes as “rule of law” have now been exposed as a multi-decade scheme to nullify elections and democratic choice — to get done through the power of “law” what the Democrats cannot accomplish politically at the ballot box. Until that changes, the GOP is absolutely correct to reject this Democrat-enabling version of “rule of law” and the hapless “conservative” establishment that has run cover for it.
Americans had no “due process” when Biden let in these millions of illegals — often flying them into cities, including my own, in the dead of night, while refusing to let citizens know what was happening. A regime in which one party can import millions of people illegally without resistance but the other party cannot restore order by deporting these same illegals just as expeditiously is many things; but it is not a democracy, and it does not have rule of law. This Blackstone-for-morons attitude is just what Americans voted against in electing Trump.
It is the typical bureaucrat’s mindset that process must always outweigh substance. But if the supposedly neutral “rule of law” process consistently delivers liberal results even against the wishes of voters, we must challenge the legitimacy of the process itself.