XPost: seattle.politics, or.politics, ca.politics
XPost: fl.politics, alt.law-enforcement

from https://tomklingenstein.com/blackstones-ratio-for-morons/?utm_medium=paid&utm_source=fb&utm_id=6754042042068&utm_content=6754042041868&utm_term=6754042042268&utm_campaign=6754042042068&fbclid=
IwY2xjawKLAqVleHRuA2FlbQEwAGFkaWQAAAYkju15TGJyaWQRMUtRRGtWM0ZDMHd0SXRCbjYBHvSfb3Juxl_ELAfkLEAwC0mvxsKR2i5-SIxQlIroh_h_JLYLauQKIWfTVdh3_aem_-hxoRBcDsd1vq0ZnGoQ09g

Blackstone’s Ratio for Morons
By Jeremy Carl
April 28, 2025

Demonstrators protest against the deportation of Mahmoud Khalil, New
York City, March 2025. (Christopher Penler/Shutterstock)
Editor's Note
You cannot win a war if you don’t know you are in one. Many Republicans
have joined in on the destructive Left’s complaints about “due process” in the enforcement of immigration law. Jeremy Carl argues that such
engagement assumes good faith that can never be taken for granted in
wartime. We must be more cautious, Carl urges, about pleas to our
Constitution that come from people we know have no real interest in it.

One of the most foundational principles of English common law, which
eventually became a core principle of American law, is Blackstone’s
ratio: “It is better that ten guilty persons escape than that one
innocent suffer.” Originally formulated in his Commentaries on the Laws
of England (written in the 1760s), it was cited repeatedly by the
founding fathers and is, in various ways, enshrined into law by the vast majority of America’s state Supreme Courts.

While one might quibble about the precise nature of the ratio (earlier precursors in English law had suggested similar ideas, but in different
ratios, such as five to one or twenty to one) overall the principle is a
sound one — one that should be applied to our immigration policy.

If we could show that one in every ten people we were deporting should
in fact not be deported because they are in fact U.S. citizens, I would
suggest that we overhaul our processes. Otherwise, the president and
his administration should be able to deport whatever foreigners they
judge to be in the national interest to deport, especially if we believe
that these foreigners are here illegally.

Obviously, we should attempt to make sure that we are not deporting
those who have legal status here. But we cannot tie our hands behind our
backs in 99% of easy deportation cases over the 1% that present real challenges. There is a number at which Blackstone’s ratio becomes
absurd. Should we let a million criminal aliens run free in our streets
out of fear that one innocent man might be deported? Ten million? Twenty?

Our courts and our media have recently gotten heavily involved in the
case of an El Salvadoran illegal — credibly accused of membership in the violent terrorist gang MS-13 and of involvement in human trafficking,
and the subject of a previous domestic violence restraining order — who
was returned to his country in technical violation of a deportation
procedure (though he had already been ordered deported, and in a
functioning immigration system would have been deported years ago). The Democrats have made him a cause celebre, with senators and congressmen
rushing to El Salvador to attempt to “return” this El Salvadoran
criminal to America.

Media accounts refer to this deportee almost exclusively as a “Maryland father” who was “wrongly deported” from his “quiet life” here in America. The clear message: This could happen to you. This could happen
to anyone. This is ridiculous.

If the government somehow apprehended me and falsely accused me of being
an illegal alien, I have close at hand a driver’s license, an original
birth certificate, a Social Security card, my U.S. passport, and
countless other documents all of which would identify me as a citizen.
If for some reason that did not satisfy investigators, I could easily do
a blood test to prove my relationship with family members, who are all
(like me) natural born U.S. citizens and have documentation to prove it.
The notion that a significant number of people (say, naturalized
citizens, whom one might expect to be particularly fastidious about
maintaining proofs of citizenship) would get deported falsely just
because they can’t seem to provide appropriate evidence that they are in America legally doesn’t pass the laugh test. That’s all of the “due process” that should be required.

Still the skeptics will whine: “But what about the rule of law?”

Of course, we expect deceptiveness from the Left. But here the liberal
Right is almost as much of a problem.

Ed Whelan of the Ethics and Public Policy Center, the longtime Bench
Memos blogger for National Review Online, argues, “The Rule of Law means
that people you don’t like, even terrible people, are entitled to the
benefit of existing laws.” And: “Every additional day that Abrego Garcia
is stuck in Salvadoran prison compounds the illegality. Rule of Law
judges understand that.” Such airy invocation of high principle simply serves to advance the left’s policy preferences. The purpose of punditry
is what it does.

Whelan’s National Review colleague Andrew McCarthy does a bit better, at least explaining in detail why, technically, he views the removal as illegitimate — but he still elides the central issue. The entire “rule
of law” approach is overwhelmingly used as a political weapon to achieve
the Left’s desired result.

McCarthy does acknowledge that there are some extraordinary
circumstances where a president could justly ignore a federal court;
somehow, he doesn’t think the mass invasion of our country, aided and
abetted for years by one of America’s two major political parties,
qualifies.

As Samuel L. Jackson says in Pulp Fiction: Allow me to retort:

President Lincoln understood better than any pundit that justice and
national survival sometimes required casting aside bad-faith claims of
“due process” and dubious court rulings. In response to the infamous
Dred Scott decision, Lincoln questioned even the power of the Supreme
Court:

The candid citizen must confess that if the policy of the Government
upon vital questions affecting the whole people is to be irrevocably
fixed by decisions of the Supreme Court, the instant they are made in
ordinary litigation between parties in personal actions the people will
have ceased to be their own rulers, having to that extent practically
resigned their Government into the hands of that eminent tribunal.

Lincoln correctly understood this type of thinking to be dangerous to America’s survival. And in Ex Parte Merryman, he directly defied the
court on habeas corpus and even jailed the judge who issued it. As
Harvard Law’s Noah Feldman has argued, even the Emancipation
Proclamation was likely unconstitutional. But it was certainly neither
unjust nor unwise.

Fortunately, key Trump officials are pushing back against the narrative
pushed by the Left and the castrated Right on this issue.

Trump’s Deputy Chief of Staff, Stephen Miller, long the president’s
point person on immigration, understood the situation much more clearly,
saying on X:

Biden imported 15M+ illegals in 4 years. Democrats believe each alien
should get a lengthy federal trial before being sent back. After we
scour the country to find them. Because they are all evading arrest. A
typical trial would take months to complete. Not counting appeals. This
would mean even if we shut down our entire federal court system to do
nothing else the process that the Democrats demand would take multiple centuries to complete. Which Democrats understand. Because they don’t
want any aliens removed. They want them all registered—to vote. The
judicial process is for Americans. Immediate deportation is for illegal
aliens. If you break into someone’s house you don’t get to spend months
or years debating your presence. Trespassers must go. And they must go now.

A day later Vice President Vance, posting on X, doubled down in the same fashion, making clear that he understood exactly what was at stake in
these cases.

To say the administration must observe “due process” is to beg the question: what process is due is a function of our resources, the public interest, the status of the accused, the proposed punishment, and so
many other factors.… Here’s a useful test: ask the people weeping over
the lack of due process what precisely they propose for dealing with
Biden’s millions and millions of illegals. And with reasonable resource
and administrative judge constraints, does their solution allow us to
deport at least a few million people per year? If the answer is no,
they’ve given their game away. They don’t want border security. They don’t want us to deport the people who’ve come into our country
illegally. They want to accomplish through fake legal process what they
failed to accomplish politically.

Rule of law is indeed on trial — just not in the way that the Left
believes. The procedural antics the Left conveniently describes as “rule
of law” have now been exposed as a multi-decade scheme to nullify
elections and democratic choice — to get done through the power of “law” what the Democrats cannot accomplish politically at the ballot box.
Until that changes, the GOP is absolutely correct to reject this Democrat-enabling version of “rule of law” and the hapless “conservative” establishment that has run cover for it.

Americans had no “due process” when Biden let in these millions of
illegals — often flying them into cities, including my own, in the dead
of night, while refusing to let citizens know what was happening. A
regime in which one party can import millions of people illegally
without resistance but the other party cannot restore order by deporting
these same illegals just as expeditiously is many things; but it is not
a democracy, and it does not have rule of law. This
Blackstone-for-morons attitude is just what Americans voted against in
electing Trump.

It is the typical bureaucrat’s mindset that process must always outweigh substance. But if the supposedly neutral “rule of law” process consistently delivers liberal results even against the wishes of voters,
we must challenge the legitimacy of the process itself.


Jeremy Carl is a senior fellow at the Claremont Institute and a former
Deputy Assistant Secretary of the Interior under President Trump. His
book The Unprotected Class: How Anti-White Racism is Tearing America
Apart, has just been released by Regnery/Skyhorse Publishing.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)