Federal Judge Rules Certain Speech-Based Deportation Statutes Unconstitutional
Speech-Based Deportation Is Not Law, but Bare Power
When a minister claims nearly unlimited authority to banish peaceful speakers in the name of foreign policy, he steps outside the bounds of civil government and into a state of war with those he governs.
The controversy is stated plainly enough. Certain statutes in this country empowered the Secretary of State to deport non-citizens whenever he judged their speech to be adverse to a “compelling” foreign policy interest of the United States. A federal judge has now ruled not only that particular deportations for speech are forbidden by your First Amendment, but that these statutes themselves are unconstitutional, both for their vagueness and for the breadth of discretion they confer. It is further reported that students, including those who criticized the policies of a foreign state, feared banishment merely for their words. Here, I do not weigh factions, but the nature of the power claimed.
To understand political power right, as I argued in the Second Treatise of Government, we must set before our minds the condition all men are naturally in: a state of perfect freedom, within the bounds of reason, to dispose of their persons and actions without asking leave of any other man. From this it follows that all authority to command another’s liberty must be derived from his consent, given for the securing of his life, liberty, and estate. The question is therefore not whether this Secretary has been given such power in a statute, but whether free and equal persons could be supposed to have entrusted to any magistrate a near-unlimited authority to expel them for the content of their speech.
If we define the thing clearly, the claim is this: that the civil magistrate, when he apprehends speech to cross some shifting line of “compelling” foreign policy interest, may, at his own discretion, tear a peaceful resident from his life and connections in this land and cast him out. This touches property in the broad sense; for a settled habitation, a course of study or work, the friendships and expectations built under the protection of laws, are a man’s estate as truly as his coins. To strip him of all these, not for violence or fraud, but for words, is to “harm another in his life, health, liberty, or possessions,” which the law of nature forbids without the clearest necessity.
It is answered, I know, that a state may admit or exclude foreigners at will, and that to be here is itself a kind of favour. But favour is not license for arbitrary power. Even if a people may choose whom to receive into their commonwealth, once they have admitted a person under settled rules, and encouraged him to build his life under those rules, they cannot then reserve a secret prerogative to ruin him for speaking opinions “repugnant” to prevailing norms. The burden of proof lies always on power: it must show that such a fearful discretion is necessary to protect the community from force or fraud. A vague appeal to foreign policy interest, which even the judge here noted ordinary people cannot understand or predict, falls far short of that mark.
This vagueness is not a small defect of style; it alters the nature of the power. Laws are made to be standing rules, known, fixed, and the same for all who are subject to them. They are a common measure by which men may foresee the consequences of their actions. When a statute speaks in uncertain and high-sounding terms, and leaves it to the breast of one officer to say which speech offends a “compelling” interest, it ceases to be a law and becomes an instrument of will. Such a minister is then judge in his own case, measuring men’s liberties not by an impartial rule, but by his present judgment of reason of state. This, I have elsewhere maintained, is nearer to a state of war than to civil society.
There is, moreover, another boundary here transgressed. In my Letter Concerning Toleration I argued that the commonwealth is instituted for civil interests only—life, liberty, health, and possessions—and that the care of souls does not belong to the magistrate, because belief depends on the inward persuasion of the mind, which no outward force can compel. Though this present dispute is about political opinion, not religion, the same reasoning holds. Penalties for speech do not convince the understanding; they only teach men to dissemble. When a government threatens deportation for expressing disfavoured views on war or foreign alliances, it is not merely regulating outward acts; it presumes to police thoughts by terror, which could never have been within the trust first placed in civil power.
It is reported that the judge emphasized that free speech in this country protects even opinions “repugnant” or contrary to prevailing political norms, and that non-citizens share these protections against speech-based deportation. On the facts given me, this judgment accords with that principle which runs through my political writings: that rulers themselves are bound by the law, by the terms of the trust reposed in them, and by the natural rights of all persons as the workmanship of one Maker. When statutes abandon clear rules, authorize near-unlimited discretion, and reach beyond civil interests into the government of opinion, they are not mere mistakes to be endured; they are usurpations to be stopped. That a court has here interposed to stop them is a hopeful sign.
What remains uncertain to me, and yet decisive for a fuller judgment, is how far such arbitrary discretions extend in your broader system, and whether this case is a single excess or one more link in a long train of abuses tending the same way.
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The state of nature as analytic baseline: perfect freedom and equality under the law of nature, so that government must be shown to improve on that baseline for everyone who leaves it.
- A Letter Concerning Toleration — The commonwealth exists only for civil interests — life, liberty, health, and possessions; the care of souls is not, and cannot be, the magistrate's business.