One of our oldest legal concepts is habeas corpus. (‘You must have the body.’) The basic idea is that you can’t detain someone indefinitely without showing cause why he should be detained. It gives the accused a right to challenge the accusations against him in court.
In a world without habeas corpus, you could be picked up by the police (or by the FBI), and placed in a cell somewhere without ever being given the chance to be told what you’re accused of, to talk to an attorney, and so on. You could sit there for years — or maybe forever — without ever having your day in court.
It’s not a world most of us would want to live in.
It’s not a big jump from habeas corpus to what those of us who don’t speak Latin might call habeas convictus. (‘You must have the conviction.’) The basic idea is that before you punish someone for committing a crime, you have to convict him of committing that crime.
In a world without habeas convictus, you could be fined, imprisoned, or deprived of your property — or prevented from running for office — without ever being convicted of committing a crime of which you’re accused.
Again, it’s not a world most of us would want to live in. If you’re familiar with Lewis Carroll, you might remember this exchange from Alice in Wonderland:
‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
‘No, no!’ said the Queen. ‘Sentence first–verdict afterwards.’
That’s the world we’re heading for now — the world that Colorado’s Supreme Court, Maine’s Secretary of State, and a lot of others would like to live in.
The way we get there is by ignoring the importance of setting precedents. If you’re familiar with A Man for All Seasons, you might remember this exchange between William Roper and Sir Thomas More:
“So, now you give the Devil the benefit of law!”
“Yes! What would you do? Cut a great road through the law to get after the Devil?”
“Yes, I’d cut down every law in England to do that!”
“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
Whether we support him, oppose him, or just don’t care at all about him, we should all be protecting, not Donald Trump, but his rights under the law… for our own safety’s sake.
The case that SCOTUS will be taking up regarding Trump’s ballot eligibility actually is about the 14th Amendment, but not the part that people are focused on. It has to do with the part that says
nor shall any State deprive any person of life, liberty, or property, without due process of law
That is, SCOTUS will be considering two questions:
Can you be punished for a crime without first being convicted of it?
Can you be convicted of a crime without first having a trial?
It’s amazing that these questions even have to be adjudicated. But if the Court decides that the answer to either question is yes, then God save us all… because the law will no longer be able to, having been cut down to deprive the devil — in this case, Donald Trump — of its benefit.
