When Shrugging is Not an Option
Bettina Krause May/June 2025What do well-heeled liberal law firms have in common with undocumented immigrants with criminal backgrounds?
Very little, except for their general unpopularity.
That unpopularity is worth keeping in mind as we consider the current presidential administration’s legal due process shortcuts in dealing with these two groups.
But before we get to that, let me share a story.
A Handyman Goes to Court
On a Sunday morning in early 1931 Mr. Charles Ballenger, of Glen Echo, Maryland, was doing some work on his house, filling a few nail holes on the inside of some windows and painting over them.
His neighbor saw him and called the police, who arrived soon after and arrested Mr. Ballenger for the crime of doing work that was neither “necessary nor charitable” on Sunday—the Lord’s Day. He was taken before a magistrate and bound over to appear the following week. Ironically, his hearing was set for Saturday, the day of the week that Mr. Ballenger, as a Seventh-day Adventist, kept holy.
When he appeared before the court—after unsuccessfully trying to have his court date moved to another day of the week—Mr. Ballenger protested that his arrest was arbitrary and smacked of targeted hostility toward his religious beliefs. He pointed out that just two miles from his house in Glen Echo there was an amusement park employing some 40 people that operated freely every Sunday. He also noted that on the Sunday of his arrest, as the police drove him to the magistrate, they had passed a group of workmen clearing brush on the side of the road.
Nevertheless, Mr. Ballenger was convicted and fined for violating Maryland’s blue law. He appealed to the Maryland District Court. The judge there ruled against him, quoting with approval from an 1892 Maryland case in which another Seventh-day Adventist had been convicted of Sabbathbreaking and had served a month in prison for shucking corn on Sunday.
Mr. Ballenger decided not to appeal his conviction any further, and spent the next five days in jail in lieu of paying the court-imposed fine.
I’ve told this story before in different settings, and sometimes I get disbelief. “Really?” someone will ask. “Here in America? In 1931? Are you sure that happened?”
It did, and court records bear out not only Mr. Ballenger’s experience but many other similar stories of the arbitrary prosecution and unfair treatment of various religious minorities who, at different times in American history, have been intensely unpopular: Roman Catholics, members of the Church of Jesus Christ of Latter-day Saints, Quakers, Jews, Jehovah’s Witnesses, Muslims, and others.
Most of us have forgotten that it wasn’t until almost the middle of the past century that religious minorities in America could claim federal constitutional protection against these abusive state laws or practices. In the 1940s the U.S. Supreme Court ushered in a religious freedom revolution by interpreting the First Amendment religion clauses in light of the “due process” requirements of the Fourteenth Amendment. We could go into the constitutional weeds on this, but the upshot can be stated simply enough: these groundbreaking Supreme Court decisions finally gave people like Mr. Ballenger the legal means to fight back against states and state officials who targeted unpopular religious views.
Liberty’s Forgotten Hero
Due process is like good health: you take it for granted until you don’t have it. Even religious liberty advocates tend to overlook issues of due process and fixate on the First Amendment religion clauses of the U.S. Constitution. We forget how much of the heavy lifting in protecting our civil liberties, including our freedom to worship, is done by a few ancient principles: equality under the law, freedom from arbitrary detention and prosecution, the right to an impartial adjudicator, the right to know the evidence against you, the opportunity to defend yourself. In other words, basic legal practices—mundane, routine, legal box-checking. As U.S. Supreme Court justice Felix Frankfurter once put it: “The history of American freedom is, in no small measure, the history of procedure.”
Due process delays the heavy hand of the state. It prioritizes fairness over efficiency. It means that people in power don’t get to make snap judgements or take sudden actions that impact our fundamental rights of “life, liberty, or property.”
Blinded by Policy Preference
Which brings us back to today’s partisan brawling around questions of executive power and how far it can step on the toes of legal due process.
Does it matter that President Trump issued executive orders targeting elite law firms that have represented clients or causes the president dislikes? Given all that’s happening these days, the plight of a few wealthy left-leaning lawyers seems rather trivial. Should we care that they were forced to either abandon certain viewpoints or suffer economic consequences?
Or what about the administration’s fast and furious deportation of many undocumented immigrants? Is it really such a problem that some of them hadn’t yet exhausted their avenues for legal appeal? Especially when the ultimate outcome—deportation—was hardly in doubt? Does it matter if some were deported under the rarely used Alien Enemies Act, which has fewer legal due process requirements than that of the standard law—the Immigration and Nationality Act? In the grand sweep of immigration reform, why should the fate of a few noncitizens demand our attention, especially those with seemingly clear criminal connections?
Taking the Long View
If we shrug at attempts by public officials to take due process shortcuts, we’re either deeply naive or we’re blinded by partisanship. It makes no difference whether such shortcuts are taken by Republicans or Democrats; it makes no difference whether the issue is immigration or free speech or anything else; and it makes absolutely no difference whether or not we favor the policy outcomes these due process shortcuts deliver.
Legal due process matters. And it matters the most when the rights of unpopular people or “problem” groups are at stake, because that’s when civil rights are at their shakiest.
For many years I worked on issues of international religious liberty, and believe me—America’s constitutional ideal of legal due process is more than nice-sounding rhetoric. If you doubt that, just spend some time outside the American bubble in countries where political leaders wield a stunning level of unchecked power over individuals’ livelihoods and lives. Winston Churchill once quipped that democracy is the very worst form of government—except for all the others. It could equally be said that America’s legal system is the very worst method of administering justice—except when compared to the alternatives. For all its past and present shortcomings, it stands apart for its enduring, extraordinary constitutional commitment, however imperfectly realized at times, to restrain unjust government acts through procedural fairness.
Beyond all this high moral ground, however, let’s not forget self-interest. Because when we shrug at today’s due process shortcuts, we also chip away at our own future constitutional protections. Who knows what’s around the corner? Majorities come and go. Minorities fall in and out of favor. Today’s acceptable viewpoints become tomorrow’s anathema.
Take it from Mr. Ballenger. Constitutional guarantees—however eloquently expressed—mean nothing without due process safeguards. When all is said and done, our own civil liberties are only as healthy as the legal due process we’re prepared to extend to the most despised among us.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.