It was an “administrative error,” the Trump administration conceded in a court filing at the end of March, to deport a Salvadoran man named Kilmar Abrego Garcia from his home in Maryland to El Salvador’s brutal CECOT prison. But error or not, the administration averred, what’s done is done. Though Abrego Garcia had been granted a withholding of removal by an American judge in 2019, the US government declined to fetch him back. The administration is uninterested in correcting its mistake.
As of this writing, Abrego Garcia’s case remains in contention, and the White House is enmeshed in many similar court battles, not least those concerning the deeply troubling detentions of foreign students for their political views.
Just this week, the Supreme Court ruled that though the administration would be permitted to move forward with deportations of Venezuelan migrants to the same Salvadoran prison, it could not do so on a whim. People subject to “detention and removal” under the law in question are “entitled” to “judicial review,” the conservative majority held, to determine whether the allegations against them are true “before such removal occurs” (my emphasis). Indeed, the court affirmed, citing Reno v. Flores (1993), “It is well established that the Fifth Amendment entitles aliens to due process of law.”
Let’s set aside the details of these cases for a moment. I find it absurd to justify the Venezuelan deportations under the Alien Enemies Act of 1798, because that law is only applicable in situations of “declared war,” and we are not in such a situation and have not been since September of 1945. But suppose you disagree. That’s fine. The point is about the rule of law itself. It is about due process and the very source of our rights.
My contention with the court is that we owe due process of law to all people in the United States, regardless of the allegations against them or their immigration status. But I would quibble with one word of the majority opinion’s phrasing: entitles. In the Fifth Amendment and elsewhere, the Constitution guarantees due process and rule of law for all. But at a fundamental level, our entitlement to these goods does not come from any law, not even the supreme law of the land.
Good government can and must secure our rights to life, liberty, property, religion, speech, assembly, and more. But the state does not and cannot create those rights. It has not that power. It is only their guardian.
The foundational insight of US law and politics is that these rights predate the government, that they are real and enduring regardless of who is in power and with what agenda, and that they do not depend on anything as flimsy as legislation or citizenship or—God forbid—executive orders. They are an unalienable endowment. And though the preexistence of our rights certainly can be assumed and asserted in secular terms, as in our Constitution, here at Christianity Today, let’s cut to the chase: Our rights come from God.
Individual rights, human rights, constitutional rights—whatever phrase you prefer—exist because of the imago Dei, because of God, “with whom is no variableness, neither shadow of turning” (James 1:17, KJV throughout). They do not come from princes, “in whom there is no help” (Ps. 146:3).
As the poet John Milton argued in 1649 in a proto-republican text, “No man who knows ought, can be so stupid to deny that all men naturally were borne free, being the image and resemblance of God himself.” Every person is God’s creature for whom Christ died and therefore of incalculable worth. No person has authority to say otherwise. There is no divine right of kings, nor of presidents.
This divine origin of our rights has two implications for our present politics, implications to which we as American Christians would do well to attend, whatever our political aims. One is that our rights cannot be limited without due process of law, and the other is that our rights cannot be denied, regardless of who we are.
On the first point, as Milton observes, human government is necessitated by the Fall:
Till from the root of Adam’s transgression, falling among themselves to do wrong and violence, and foreseeing that such courses must needs tend to the destruction of them all, [humans] agreed by common league to bind each other from mutual injury, and jointly to defend themselves against any that gave disturbance or opposition to such agreement. Hence came cities, towns and commonwealths. And because no faith in all was found sufficiently binding, they saw it needful to ordain some authority, that might restrain by force and punishment what was violated against peace and common right.
That authority to restrain is not boundless. The foundation of God-given rights remains, even if we are obliged by the fruits of sin and death to build on it a prison. This means that our rights do not go away even when we are accused of some grave evil, but they may be constrained if we are found guilty under due process of law.
Of course, the state rarely needs to hear that. The government doesn’t have to be told twice about its opportunities to constrain our rights. What it must be told not twice but endlessly is the converse: that our rights cannot be constrained without due process and, therefore, that when due process has not been provided, the government is obliged to make things right.
Practically speaking: Perhaps Kilmar Abrego Garcia’s withholding of removal should be revoked. Perhaps he should be deported. I will be agnostic on that question here. But “administrative error” is not and never will be an acceptable means to that end. Abrego Garcia must be returned to the United States and given due process of law. And maybe that process will not go the way he hopes. So be it. But the process must happen.
It must happen for his own sake, because of his own rights. But it also must happen for my sake and yours and the sake of everyone in this country where we seek—rightly, haltingly, insufficiently, in our best moments—to be, in John Adams’s words, “an empire of laws and not of men.”
Ah, you may be thinking, but Abrego Garcia is not one of “us.” He is not a US citizen. True enough, but it doesn’t matter.
It might well matter if our rights came from the law. In that case, we should have to rely on what the law tells us about citizenship and the durability of rights across borders. But my core argument is that our rights do not come from the law. The law is merely their defender. Our rights come from God. And that means, to my second point, that they cannot be denied, regardless of who we are.
Citizenship is not a trifling matter. There are many circumstances where it makes a difference. But God does not dole out the imago Dei according to citizenship. If we imagine we can justly deny each other God-endowed rights on that basis, we act above our station. Think what you please about this president or that policy, but the state does not trump God, not even if national security is at stake.
Now, as it happens, this reality is duly reflected in our Constitution. As the Supreme Court observed this week—echoing past decisions and father of the Constitution James Madison—“It is well established that the Fifth Amendment entitles aliens to due process of law.” The Constitution is typically precise in its language. It says citizen when it means citizen (for example, in the qualifications to be president or in the Privileges and Immunities clause) and person when it means person.
The Fifth Amendment, which says the government may not take “life, liberty, or property, without due process of law,” says person. Though there is some legal ambiguity around some constitutional rights accorded to the people, a phrase sometimes understood as the citizenry and sometimes as the whole population, there is no ambiguity here. Due process in the United States does not depend on citizenship. The Fifth Amendment guarantees it to everyone in the US and directly ties it to our most basic rights, the rights that come from God.
Let me conclude by noting the utter banality of everything I’ve written here. This is basic, basic stuff if you are an American: I am drawing on the Preamble of the Declaration of Independence and the Bill of Rights, words every schoolchild should know.
It is even more basic if you are a Christian. I am drawing on Genesis 1 and the first sentence of the Nicene Creed. Our rights come from God. That is not the formulation every Christian in every time and place would use to express the divine source of human worth, but it is a perfectly useful and defensible one. It is one American evangelicals have long employed (sometimes to our compatriots’ scorn). We should keep on saying it, particularly those of us who helped elect an administration in which due process is apparently not a priority.
And while we may or may not want to move our immigration policy in a more restrictionist direction—this is a matter on which reasonable Christians and Americans can disagree—the way to do that is to change the law, then follow it. What we must not do is ignore or distort the law. We must not willingly let errors stand. We must not abrogate God-given rights with untenable shortcuts we will come to regret.
Bonnie Kristian is the editorial director of ideas and books at Christianity Today.
