As we approach the 250th anniversary of the Revolutionary War, it is appropriate to recall the core principles that fueled Americans’ fight against tyranny. Central to this struggle was the liberation from arbitrary governmental violations of civil liberties, particularly the right to due process before imprisonment.
As Alexander Hamilton warned in The Federalist No. 84, “The practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.” This ancient right, developed through centuries of Anglo-American jurisprudence, is not a mere convenience. It is a bedrock of our legal system.
The foundations of due process and habeas corpus trace back to Magna Carta, the “Great Charter” that the English barons imposed on King John at Runnymede in 1215.
Chapter 39 of Magna Carta proclaimed, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [King John] proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”
The framers of the Constitution were deeply influenced by their Anglo-Saxon legal heritage. The colonists of the 1770s felt they were being denied their rights as Englishmen. The Declaration of Independence accused King George III of establishing “an absolute tyranny over these states,” improperly influencing the judiciary, depriving colonists “of the benefits of trial by jury” and “transporting us beyond seas to be tried for pretended offences.”
That is why these protections were enshrined in the Constitution. Article I explicitly protects habeas corpus, and the Fifth and Sixth Amendments guarantee due process. The Fifth Amendment declares: “No person shall be … deprived of life, liberty, or property without due process of law.”
Trump’s recent immigration actions represent a stark departure from these foundational principles.
The U.S. government paid El Salvador to imprison more than 200 immigrants from Venezuela and El Salvador in a notorious maximum-security prison. The basis for their imprisonment was that they were suspected of being members of criminal gangs, though the government did not provide compelling evidence of this, and the men did not have the opportunity to prove that they were not gang members.
The Fifth Amendment’s “no person” clause does not limit its guarantees to citizens; it explicitly prohibits deprivation of liberty without due process.
The Fourth Circuit Court of Appeals agreed with the district court that the government had to facilitate and effectuate the return of Kilmar Abrego Garcia to the U.S. to provide him with the opportunity to question the government’s assertion that he was a gang member. Reagan-appointed Judge Harvie J. Wilkinson, writing for the majority, denied the government’s motion for an emergency stay in the Garcia case, stating, “The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”
Wilkinson rejected the notion that transferring custody absolved the government of its constitutional obligations.
The Supreme Court’s subsequent order that the government facilitate the return of Garcia was met with defiance from the White House, which tweeted, “He’s NOT coming back.”
Furthermore, Trump’s statements during an Oval Office press conference, where he threatened to send “homegrown criminals” to the same foreign prison, reveal a chilling intent to expand this practice. “Homegrown criminals are next … You gotta build about five more places,” he told President Nayib Bukele of El Salvador.
When asked in a television interview if he had to uphold the Constitution, Trump said, “I don’t know.” His top White House aide, Stephen Miller, later said that the administration was “actively looking at“ suspending habeas corpus.
This stance contradicts the essence of American jurisprudence. As Justice Antonin Scalia argued in Hamdi v. Rumsfeld, “the very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.”
Trump says that giving each accused person a “trial” would take too long. But due process does not necessarily mean a full trial; it could be a hearing before an immigration or administrative judge. The core principle is the right of people accused of breaking the law to have the opportunity to defend themselves.
As a popular social media post states, “You can’t say criminals don’t deserve due process — due process is the thing that decides if they are criminals. Otherwise you’re just kidnapping people you don’t like.”
Defending due process is not about shielding criminals, it is about safeguarding every individual from the arbitrary power that America’s founders fought to abolish. Trump’s actions and statements signal a profound threat to the very liberties that define our nation.
James P. Pfiffner is professor emeritus in the Schar School at George Mason University. He has written or edited 15 books on the presidency and American government.