RoR: Forum

Stopping people at the border to verify innocence or suspicion of guilt is a legitimate function of government, and is simply called due process.

I don't think "due process" means what you think it means, since you are apparently defining it as government agents stopping and questioning people who have done nothing that would give reasonable suspicion that they are engaging in, or plan to engage in, criminal conduct that harms others.

Also, by "legitimate function of government", I presume you mean it is an enumerated power granted government by the Constitution. Can you quote that relevant section granting this power?

Various definitions of "due process" from a brief google search, none of which seem to accord with your statement above:

"The government must treat all individuals fairly and justly by following certain procedures that limit the government's power and protect the life, liberty and property of the people."
courts.oregon.gov/Coos/glossaryofterms.page

"the course of legal proceedings established to protect individual rights and liberties."
brownvboard.org/brwnqurt/06-3/index6.php

"the conduct of a legal proceeding according to established rules and principles to ensure the protection and enforcement of an individual's rights."
www.halifaxprosecutor.com/definitions.htm

"Constitutional guarantee that an accused person receive a fair and impartial trial."
www.california-personal-injury-lawyers.com/car-accidents-legal-glossary/car-accidents-legal-glossaryd.html

"An established course for judicial proceedings designed to safeguard the rights of the accused."
www.vuu.edu/student_life/office_of_student_integrity_and_conduct/glossary.aspx

"The opportunity for individuals to explain and defend their actions against charges of misconduct or other reasons."
www.kumc.edu/eoo/glossary.html

"The concept that those subject to legal proceedings, notably persons charged with committing crimes, should have their rights under the law respected at all times throughout the process from arrest through to trial and sentencing, and should receive the full benefit and protections that those ..."
www.communicatingjustice.org/en/glossary

"Ensuring the protections and rights of the defendant during the criminal justice process. In some states, such as California, due process also includes ensuring and protecting the rights of victims of crime as defined in the California Constitution."
www.alcoda.org/faqs/legal_terms

"Prior to any pre-disciplinary or disciplinary actions employees must be given oral or written notification of an offense, an explanation of the agency's evidence in support of the charge, and a reasonable opportunity to respond. ..."
www.hrs.virginia.edu/relations/soc/glossary.html

Post 81

Saturday, May 8, 2010 - 8:05pm

Jim your posts border on sophistry, if not outright sophistry::

Stopping people at the border to verify innocence or suspicion of guilt is a legitimate function of government, and is simply called due process.

I don't think "due process" means what you think it means, since you are apparently defining it as government agents stopping and questioning people who have done nothing that would give reasonable suspicion that they are engaging in, or plan to engage in, criminal conduct that harms others.

When I said people, I meant immigrants waiting to come into our country at the border. Not just any person. For crying out loud Jim, couldn't you have gotten that from the context of my post?

I don't think "due process" means what you think it means...

Actually Jim I don't think YOU know what it means, nor do I think you know what a lot of things actually mean. Due process is the procedures used to determine whether someone has committed a crime, we can extend this to immigrants that wish to come here and see if they are suspected of a crime or are a criminal. The act of determining this is a part of what is defined as due process, and it's so obvious that it is that I can't even understand how someone cannot comprehend that. Immigrants are coming in from a jurisdiction the United States government has no control over, so asking for identification or being subject to a physical examination is not a violation of that immigrant's rights, it is rather upholding the rights of your own citizens that live in the jurisdiction that border agent has sworn as his duty to protect. These immigrants are waiting to come into your jurisdiction, so they don't get to have the same legal claim to the right of privacy that legal residents or citizens do. There is no moral obligation to respect that level of privacy, so long as the intrusion of that privacy is reasonable, and only to determine if the immigrant intends to assault people or not.

Stopping criminals from coming in is upholding life, liberty and the pursuit of happiness, otherwise letting in criminals into our country means you are perfectly happy with individuals being assaulted, and I'm not surprised that you would considering you're an anarchist.

Also, by "legitimate function of government", I presume you mean it is an enumerated power granted government by the Constitution.

No, not necessarily. I mean to use "legitimate" here as in moral. I'm arguing for philosophical principles here, if you have any issues with them then make your argument.

(Edited by John Armaos on 5/08, 9:02pm)

Post 82

Saturday, May 8, 2010 - 9:05pm

When I said people, I meant immigrants waiting to come into our country at the border. Not just any person. For crying out loud Jim, couldn't you have gotten that from the context of my post?

I've been through border checkpoints located at the borders of Canada and Mexico. They stop EVERYBODY going into and out of Canada. They stop EVERYBODY coming into the U.S. from Mexico. In both cases, they ask people who have produced proof of citizenship intrusive questions.

How exactly do you propose stopping and (at least momentarily) detaining in a custodial situation (which is precisely what you are in when you enter one of those checkpoints) just the immigrants, and no one else? How can you tell them apart?

Due process is the procedures used to determine whether someone has committed a crime, we can extend this to immigrants that wish to come here and see if they are suspected of a crime or are a criminal. The act of determining this is a part of what is defined as due process, and it's so obvious that it is that I can't even understand how someone cannot comprehend that.

The quotes with links I cited all show that due process is the rights people have to protect them against the actions of the government and to confine that government to just the enumerated powers granted it and its agents. The links show it is a protection for individuals against the government, not a checklist of powers the government has asserted it possesses that it can employ against individuals.

If you have any links giving a definition matching what you said, including the assertion that it is a power granted government agents to stop people without cause and try to determine if they might be criminals, I would like to see them.

(Edited by Jim Henshaw on 5/08, 9:06pm)

Post 83

Saturday, May 8, 2010 - 9:13pm

No, not necessarily. I mean to use "legitimate" here as in moral.

If by "moral", you mean "laws preventing the initiation of force", then fine. I'm in full agreement with that.

Is that what you meant, or did you mean "laws imposing the morality of one group of people upon another group of people"? Because the border treatments you are proposing appear to me to be the latter, not the former.

Post 84

Saturday, May 8, 2010 - 9:13pm

John,

Jim is correct about 'due process.' (But I don't agree with any of his other arguments.)

It means that a person is 'due' (i.e., owed) the proper 'process' of law to protect their legal rights.

Wikipedia gives a good definition: "Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state."

It comes from English common law. Again, from Wikipedia, The phrase due process of law first appeared in a statutory rendition of Magna Carta in A.D. 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

Post 85

Saturday, May 8, 2010 - 9:31pm

Jim:

I've been through border checkpoints located at the borders of Canada and Mexico. They stop EVERYBODY going into and out of Canada. They stop EVERYBODY coming into the U.S. from Mexico. In both cases, they ask people who have produced proof of citizenship intrusive questions.

How exactly do you propose stopping and (at least momentarily) detaining in a custodial situation (which is precisely what you are in when you enter one of those checkpoints) just the immigrants, and no one else? How can you tell them apart?

Are you saying it is impossible to determine this from the type of identification you have? Seriously Jim?

The quotes with links I cited all show that due process is the rights people have to protect them against the actions of the government and to confine that government to just the enumerated powers granted it and its agents. The links show it is a protection for individuals against the government, not a checklist of powers the government has asserted it possesses that it can employ against individuals.

Again, due process is the legal procedure used for determining if someone has committed a crime or not, yes of course that includes what certain actions the government is prevented from doing legally, and the purpose of that is to try and protect the innocent, but it also means there are powers granted to the government during this legal process in order to determine guilt. If you are a suspected criminal, you don't have the right to be free from a reasonable search for example, and in that context, the government has the power to search.

If you have any links giving a definition matching what you said including the assertion that it is a power granted government agents to stop people without cause ...

Woah woah woah, again, you drop entirely what specific people I'm talking about, and you act as if it is without cause. First of all, it is certainly a morally justifiable cause to stop someone who is not a citizen or legal resident of the jurisdiction of the United States at the border, and ask them for identification in order to determine who they are before entering our jurisdiction. Due process implies legal protections, and I don't think there is any obligation to give foreign citizens the same legal protections you give to a citizen or legal resident of the United States.

Immigrants are coming in from a jurisdiction the United States government has no control over, so asking for identification or being subject to a physical examination is not a violation of that immigrant's rights, it is rather upholding the rights of your own citizens that live in the jurisdiction that border agent has sworn as his duty to protect. These immigrants are waiting to come into your jurisdiction, so they don't get to have the same legal claim to the right of privacy that legal residents or citizens do. There is no moral obligation to extend that level of due process to an immigrant, there is no moral obligation then to respect that high a level of privacy that you would normally give to a citizen, so long as the intrusion of that privacy is reasonable, and only to determine if the immigrant intends to assault people or not.

But let's examine what you propose. No one is stopped at the border. So every single wanted criminal and terrorist for that matter from around the world would have every incentive to come to the United States. They could escape punishment from their country of origin and slip right into the U.S. and start preying on U.S. citizens. Do you find that to be reasonable?
(Edited by John Armaos on 5/09, 12:54am)

Post 86

Saturday, May 8, 2010 - 9:38pm

Steve:

Jim is correct about 'due process.' (But I don't agree with any of his other arguments.)

It means that a person is 'due' (i.e., owed) the proper 'process' of law to protect their legal rights.

Yes I understand that, but I don't think a foreign citizen has the same legal claim to due process that an American citizen has. I also don't think that while they are waiting at a border checkpoint that anything goes, and the government can do whatever they want to them. I'm trying to say that there would have to be different legal protections in this context to alleviate the epistemological problems we have with taking in people from foreign jurisdictions. So asking for identification, and performing a physical examination on a foreign citizen that wishes to enter the United States and be a citizen of the United States should be permitted, because this is serving the principle of protecting individual rights. The intrusion of privacy in this context should only extend as far as to protect rights. So obviously the due process in this context would be different, and morally justifiable, but there should be some legal protections afforded to the foreign citizen wishing to enter.

(Edited by John Armaos on 5/08, 10:09pm)

Post 87

Saturday, May 8, 2010 - 9:49pm

Jim:

If by "moral", you mean "laws preventing the initiation of force", then fine. I'm in full agreement with that.

Is that what you meant, or did you mean "laws imposing the morality of one group of people upon another group of people"? Because the border treatments you are proposing appear to me to be the latter, not the former.

Just so I understand if we're even on the same page or not, do you think it is morally legitimate to have the police question someone who is suspected of a crime or search their persons? You don't actually know that they did commit a crime, you have a reasonable suspicion that they did, they could be innocent, so if you ended up finding out they were innocent after all, did you violate that person's rights by searching their persons? Do you understand what I mean here by the epistemological problems that we have in knowing who is innocent and who is guilty, and that we need some process to determine this that is reasonable? Now let's extend that to the national borders and foreign citizens who want to enter. You have a person crossing jurisdictions, he's not traveling within the jurisdictional territory of the United States, he's traveling from one foreign jurisdiction and going into another. If you don't have any kind of checkpoint, any criminal can come in and escape prosecution from their country of origin, any terrorist can come in and blow up a building. Obviously this is an untenable situation, you need to have some kind of mechanism to weed out the criminal element from entering your jurisdiction while allowing innocent people to come in.

(Edited by John Armaos on 5/09, 1:01am)

Post 88

Saturday, May 8, 2010 - 9:56pm

Jim:

...I presume you mean it is an enumerated power granted government by the Constitution. Can you quote that relevant section granting this power?

I don't understand why an anarchist would be appealing to the Constitution, which is the law of the land, i.e. a government monopoly.

Post 89

Sunday, May 9, 2010 - 7:32am

Yes I understand that, but I don't think a foreign citizen has the same legal claim to due process that an American citizen has. I also don't think that while they are waiting at a border checkpoint that anything goes, and the government can do whatever they want to them. I'm trying to say that there would have to be different legal protections in this context to alleviate the epistemological problems we have with taking in people from foreign jurisdictions.

I'd say that it is entirely proper for a government to have an accurate account identifying who is actually within the boarders in order for the laws established to protect them to actually work.

Birth certificates are issued within a day of a child's arrival to the world and America. These documents recognize there is a new citizen in town, that the law also applies to them. Documentation is a recognition of protections to an individual. They are not coercive or collective.

Post 90

Monday, May 10, 2010 - 7:30am

Documentation is a recognition of protections to an individual. They are not coercive or collective.

If the government is coercive or collective, and does not protect some or all individual rights, then the documentation can be, and in the recent historical past has been, used by the government to harm the documented individuals.

Are you really arguing that documentation of who was of Jewish ancestry in Germany in the 1930s was a "recognition of protections to an individual"? Do you really believe that the current drive by certain individuals working in the U.S. federal government can not be turned against us and used for malign purposes? Are you arguing that Social Security numbers are, and always will be, used only for the purpose they were originally set up for -- identifying who is enrolled for that particular entitlement program -- and not used for nefarious purposes?

Do you really have such a sunny view of human nature that you can trust politicians such as (insert names of politicians you loathe most here) to work for our benefit?

Post 91

Monday, May 10, 2010 - 7:36am

I don't understand why an anarchist would be appealing to the Constitution, which is the law of the land, i.e. a government monopoly.

I'm requesting that you be more specific about a vague term you used, so I can understand what you meant.

And an anarcho-libertarian can prefer a less coercive minarchist Constitution to the defacto set of rules currently in use that are not in compliance with that Constitution.

There are degrees of unjust behavior and coercion. I can prefer a lesser degree of coercion then I'm currently subject to, while ultimately desiring no coercion at all.

Post 92

Monday, May 10, 2010 - 1:10pm

Jim essentially you believe in floating abstractions without context, which is a necessity in order to believe anarchy can work.

Let everyone come in, but never mind if everyone who comes has no respect for NIOF. It does not help you one whit if you believe it, or even if a large % of your neightbors do, if a sufficient number of people don't, you are going to be explaining that to someone who just stabbed you and took your wallet.

Context matters, and so does reality, and unless a sufficient enough portion of your populace embraces your ideas, you are bound to fail. That is why assimilation is important, and why multiculturalism is so evil. It is also why Rand focused on changing that culture first, because otherwise all you have is pieces of unenforcable paper.

Post 93

Monday, May 10, 2010 - 2:24pm

Jim

If the government is coercive or collective, and does not protect some or all individual rights, then the documentation can be, and in the recent historical past has been, used by the government to harm the documented individuals.

Are you really arguing that documentation of who was of Jewish ancestry in Germany in the 1930s was a "recognition of protections to an individual"?

Talk about hyperbole. The government requires you have identification for driving a car, are they using that to put people into a gas chamber?

It's rather insulting to use that comparison, it denigrates the memory of those that were killed by insinuating any moral equivalence. And it presumes any kind of documentation, regardless of the reasons for it, must be intrinsically evil. Obviously if you're context-dropping, then I can see how you make the error, but documentation for the purposes of ethnic cleansing should not be confused with documentation for the purposes of protecting the innocent. But context-dropping isn't particularly new to you, it's been my experience now talking with you that you make the same logical error over and over again in your arguments.

The question is, does an individual have the right to always be anonymous in any and all dealings he has with other people? I say the answer to that is no. If the value here is life, and if the context calls for it, then you don't have the right to remain anonymous when it is at the expense of protecting the innocent. You seem perfectly content with letting murderers and terrorists into our country, no one with any ounce of sanity and respect for life would advocate such a thing. You can recognize that we have an established border for differentiating our jurisdiction with that of a foreign jurisdiction, and recognize that we have the right to protect that from foreign invasion, whether by foreign army or by foreign murders and terrorists, or as a typical anarchist you can say that no such recognition of sovereignty is necessary, as that would imply a monopoly government.

And an anarcho-libertarian can prefer a less coercive minarchist Constitution to the defacto set of rules currently in use that are not in compliance with that Constitution

Except you can't logically appeal to a Constitution you don't believe should exist as a basis for not checking for identification at the border. You are arbitrarily making appeals and not making any principled arguments when you do that.

Post 94

Monday, May 10, 2010 - 4:14pm

The question is, does an individual have the right to always be anonymous in any and all dealings he has with other people? I say the answer to that is no. If the value here is life, and if the context calls for it, then you don't have the right to remain anonymous when it is at the expense of protecting the innocent.

I completely agree.

Post 95

Tuesday, May 11, 2010 - 9:36am

John,

I've been following your discussion with interest. I believe you've argued that the individual states don't stop and check immigrants from another state at their borders, because the U.S. already knows who its criminals are. Is that correct? If so, I'm wondering whether, based on your arguments, it wouldn't be wise for them to do so.

Suppose, for example, that a U.S. citizen who is a criminal and is on the lam travels from California to Arizona. Wouldn't he pose the same risk to the citizens of Arizona as a criminal from Mexico poses to U.S. citizens? And if so, shouldn't the Arizona authorities stop and check people at their borders in the same way that the U.S. does, just to make sure that no criminals (or people with infectious diseases) are entering their jurisdiction from another state?

- Bill

Post 96

Tuesday, May 11, 2010 - 9:45am

...and if you guys think government has the right to stop and check people to see if they are criminals (forget about probable cause) then why not have internal passports and checkpoints spread all over - just like the old Soviet Union?

Post 97

Tuesday, May 11, 2010 - 10:23am

If the rascals don't all get really tossed come november, that might be seen in a few years...

Post 98

Tuesday, May 11, 2010 - 11:45am

Hi Bill, actually to a certain extent I believe this does happen when the context arises. I was actually vacationing with my parents when I was a child at the Grand Canyon, there was this escaped convict that was deemed highly dangerous and had kidnapped some people and took their car. Everyone leaving the Grand Canyon area in the Southern rim part leaving the main road was stopped. Not searched, but Arizona troopers were asking every driver questions to ascertain if they were being held hostage or not. It was certainly an inconvenience, and I have no idea if it was Constitutional or not, no one seemed to raise an issue about as people were scared out of their wits when they heard the news of this guy. I think there has to be a reasonable context to do things like that though. But as a matter of day to day practice, I don't think we should be stopped at every state border, all of the states have an agreement as being part of the Union to have free movement between the state borders, so they all fall under the same federal jurisdictional guidelines for what they can or can't do. But this means the states have agreements with each other for extradition, they can share police information with each other, etc, so it eases the epistemological problem. We do this to a lesser extent with foreign nations that we have good relations with, and we require less documentation than we would for other nations, for example we don't require VISA documentation for travelers coming from most of Europe, Canada etc.

Steve wrote:

...and if you guys think government has the right to stop and check people to see if they are criminals (forget about probable cause) then why not have internal passports and checkpoints spread all over - just like the old Soviet Union?

No Steve I don't think we should do that.

Post 99

Wednesday, May 12, 2010 - 8:18am