The Declaration of Independence is full of high-flown words and noble concepts. “Justice,” you may be surprised to know, is not one of them.
“We hold these truths to be self-evident,” the Declaration begins, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Not justice.
The closest the Founders came to embracing justice is in the very next sentence after “Life, Liberty and the pursuit of Happiness. — “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Baked into their concept, then, was the idea that governance must be based on “just powers.” But that’s a pretty brief and bland reference; what did they mean by that?
Later analysts say justice is a matter of three missions:
—Distributive justice, meting out a fair share of benefits and responsibilities to members of society;
—procedural justice, making sure the processes of the justice system are administered fairly;
—and corrective justice, addressing the wrongs or injuries suffered by members of society.
By those standards, the “justice” being meted out to migrants seeking asylum in the United States comes closer to the list of charges against King George III, than to that Holy Trinity of “Life, Liberty and the pursuit of Happiness.”
Among the British Monarch’s injustices that justified rejection and revolution, the Founders declared, “He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.”
And when it came to the King’s courts for the colonies, the Declaration found a fatal flaw: “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”
Just like the immigration courts the Trump Administration is using to keep migrants from gaining asylum and access to America.
These are courts unlike the ones we think of as part of the American justice system. They are not a part of the judiciary, but are controlled by the executive branch, the Department of Justice and the president.
They do not observe the rules of evidence or the procedures used to protect the rights of defendants in real American courts.
In fact, the administrators of this system rarely mention justice and do not list it as a priority of their mission. The priority, rigidly and ruthlessly enforced, says the union that represents more than 400 Immigration Judges, is speed. There’s a quota: 720 cases a year for Judges to get through or face sanctions, maybe even unemployment.
In one courtroom that meant 27 would-be asylees turned away, tossed back to Mexico or their country of origin, while only three were allowed a formal asylum hearing in a real court, where their chances of getting asylum are better than one in ten.
Madeleine Schwartz is an award-winning writer and editor. She has written for The New Yorker, The New York Times, The London Review of Books, The Guardian, Harper’s, Politico, The Nation, Elle, Artforum, and The New York Review of Books, where she worked as an editor for several years. Her reporting has been supported by the Robert Bosch Stiftung, the International Women’s Media Foundation and the Fulbright Foundation. Her article “The End of Atlanticism: has Trump killed the ideology that won the cold war?” won the 2019 European Press Prize. She is launching a new iteration of the magazine The Dial.