Last Wednesday, the Trump administration filed an emergency motion with the U.S. Court of Appeals for the 4th Circuit, seeking to halt a lower court’s order that the government “take all available steps to facilitate the return” of Kilmar Abrego Garcia from El Salvador. The next day, a three-judge panel unanimously rejected the motion. “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,” Judge Harvie Wilkinson wrote for the majority. Wilkinson, a Ronald Reagan-appointee and staunch conservative, added that the government’s view “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Wilkinson’s opinion, including its reference to Americans’ “intuitive sense of liberty,” was widely hailed by commentators and public figures alike. But both history and contemporary examples show that Americans have not always shown an intuitive sense of liberty. Every generation must learn the value of liberty for itself and why liberty should not be taken for granted. The generation must strike its own balance between freedom and order, a balance appropriate to the times in which it lives.
For the GOP, the intuitive sense of liberty about which Wilkinson wrote does not apply to immigrants.
Last week, Vice President JD Vance made clear how he and the president would strike that balance, specifically in regards to due process of law for immigrants. “To say,” Vance wrote, “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….To put it in concrete terms, imposing the death penalty on an American citizen requires more legal process than deporting an illegal alien to their country of origin.”The president’s opponents “don’t want us to deport the people who’ve come into our country illegally,” Vance claimed. “They want to accomplish through fake legal process what they failed to accomplish politically: The ratification of Biden’s illegal migrant invasion. President Trump and I will not stand for it.”
“Fake legal process” joins “fake news” in the administration’s rhetorical arsenal.
At first glance, polls seem to suggest that a majority of Americans are on Vance’s — and Trump’s — side. Immigration has been the president’s strongest issue in polling. In a March CBS/YouGov poll, for example, 53% approved of his handling of immigration, and 58% backed the administration’s “program to deport immigrants illegally.”
But drill down into the specifics, and the White House’s immigration agenda is less popular. Most Americans oppose deporting undocumented immigrants who are long-time U.S. residents, for example, or those who have not broken any laws other than immigration laws. More recent polls even show slippage in voters’ views of Trump’s handling of immigration issues more broadly. Perhaps that’s because, as The American Prospect’s Ryan Cooper suggests, “few people thought they were voting for the president to kidnap a legal resident by mistake, deport him to a torture prison in a foreign country, and openly defy a Supreme Court order to bring him back.”According to a Rutgers/Ipsos poll, when Americans are asked whether it is OK for the Trump administration to continue deportations “in defiance of a court order, only 40% of all adults support continuing with the deportations.” But there is a stark partisan split: 76% of Republicans think it should continue to do so, as opposed to 8% of Democrats. For the GOP, the intuitive sense of liberty about which Wilkinson wrote does not apply to immigrants.
During many periods in American history, anti-immigrant sentiment led to abridgments of civil liberties.
This is nothing new. During many periods in American history, anti-immigrant sentiment led to abridgments of civil liberties. The Chinese Exclusion Act of 1882, for instance, banned immigrants from China. The Johnson-Reed Act of 1924 expanded that ban to the rest of Asia, and created quotas for other countries designed to privilege immigrants from northern and Western Europe.Similarly, our intuitive sense of liberty often has not extended even to such basic rights as freedom of speech. “For most of American history, free speech did not exist in the United States,” Vox’s Supreme Court correspondent Ian Millhiser rightly observes. “Dissidents were commonly thrown in prison, often for many years, when the government disagreed with their views.”
In Millhiser’s view, “the kind of First Amendment freedoms that most Americans take for granted… aren’t as baked into the law as one might think — and are actually quite fragile.” We see that fragility in the administration’s attack on law firms, universities, the press and other centers of independent thought. Not surprisingly, then, many Americans don’t think of themselves as having real freedom. A survey analysis by sociologists from Harvard University and the University of Toronto found that “those who feel the most free are, in general, those who have the most money.” Economically disadvantaged people were more likely to see the promise of American freedom as an empty one. Moreover, as the Covid pandemic showed, there are deep divides in the liberties Americans think they can claim or restrict in the name of public health and the public good. And even before the start of the second Trump administration, Americans who prized liberty were not optimistic about the future of freedom in this country. In 2022, two-thirds believed “they will lose more (freedom) than they have right now over the next 10 years.”Judge Wilkinson was right to call attention to the danger the present moment poses to freedom in America. Yet, I don’t share his confidence that Americans “hold dear” an intuitive commitment to freedom. Then-Vice President Kamala Harris’ effort to make freedom the animating spirit of her campaign, for example, failed to prevent Trump’s return to the White House. Near the end of his tenure as president of South Africa, Nelson Mandela told his country’s parliament, “Freedom can never be taken for granted. Each generation must safeguard it and extend it.” He urged them to “Use this precious right to ensure that the darkness of the past never returns.” Even in America, the commitment to freedom does not come naturally. It must be carefully cultivated, curated and realized in the actions people take to defend it. Americans today need to heed Mandela’s admonition so that the darkness of our present can be extinguished, as Judge Wilkinson warns, “while there is still time.”
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
