Warrantless Border Detentions are Illegal: a brief argument

Human rights, as recognized in international and US constitutional law, are routinely infringed by our border policies and infrastructure, in ways not clearly tied to any compelling state interest that might be able to justify that infringement. It is the border, in other words, and not the crosser that is illegal. This is a pressing issue now, and it is about to get a lot more pressing.

The relevant rights as defined in the UN Declaration of Human Rights are found in Articles 9, 13, 14, and 15.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

My argument also draws on the rights listed in the 14th Amendment to the Constitution, which while it begins with rights of citizens, goes explicitly beyond them, further enumerating rights that belong to “any person.”

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Article 9 of the UN Declaration and the 14th Amendment converge on the idea that liberty may not be denied unduly, that arrests may not be arbitrary, for any person. An arrest or detention for which there is not appropriate justification — as in probable cause, such as evidence of criminal behavior or intent — is illegal.

The other articles of the Declaration listed above — rights to leave one’s country, to seek asylum and new nationality — establish that crossing a border is not probable cause. It is incoherent to say that one has a human right to do something, and also that arrests for doing it are not arbitrary or undue.

Together these entail that, statutes to the contrary notwithstanding, detention, arrest and prosecution for border crossing is not permitted. Those for whom there is adequate evidence of criminal activity or intent may still, so far as this argument goes, be stopped at the border as readily as anywhere else. The line of reasoning I have sketched here also renders any infrastructure meant to impede such crossing highly suspect.

Mr. President, tear down that wall.

David is an environmental philosopher who teaches at Western Carolina University in the southern Appalachian mountains.

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