Are We Violating the Law As Well As Our Integrity?



The news informs us that children, who have been taken from their parents, will sleep in tents at the border. What level of horror must this be for young children and even teens? How can this be happening in the United States of America?


My son, a retired law enforcement officer, recently raised a question concerning the legality of our Constitution’s Eighth Amendment and the current practice of separating families seeking asylum. Words from this Amendment state, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Our conversation triggered questions about what the words “cruel” and “unusual” actually mean. What standards can guide citizens as we seek to assess punishments that appear to outweigh offenses of parents?


Some judges such as Scalia and Thomas argued in favor of using the original meaning, even if contrary to public practices. Other legal experts suggest that the word “unusual” in the Eighth Amendment did not originally mean rare — it meant contrary to long usage, or new. Three ideas beg for consideration.


  1. As a parent, I cannot think of a harsher cruelty than to have one of my children taken away from me.

  2. For a child who has faced danger and hardship to follow parents to a safe place, the terror of being separated from family must be unimaginable. Experts claim that children in such bewildering situations will be negatively impacted for life.

  3. Except in cases of child abuse, removing children from their parents has not been approved by previous administrations. Our current level of inhumanity has not been the American way.


Thus, my non-legal thinking concludes: 1) Separating families does, indeed fit the word cruelty. The practice inflicts cruelty to children as well as to parents. 2) Due to the fact that this practice has not been adopted by previous administrations, it matches the original meaning of unusual. We have dropped to a new level of disgrace.


I cannot recall any moral teachings that encourage separating children from parents in order to influence citizens of foreign countries. Regardless of the administration’s intention behind this new practice, these actions reap enormous damage with insignificant gains. Finally, a practice, that at the least seems morally wrong, may also be illegal according to the Eighth Amendment of our Constitution.


Sources:


Fox, Maggie. “Kids Can Suffer Permanent Damage from Border Separations.” NBC News. June 15, 2018. https://www.nbcnews.com/health/health-news/kids-suffer-permanent-damage-border-separations-n883636

Haiman, Peter Ernest Ph.D. “Effects of Separation on Young Children: Implications for Family Court Decision Making.” Decades of Respected Child Rearing Advice. http://www.peterhaiman.com/articles/effectsOfSeparationOnYoungChildren.shtml

Steenson, Bryan A., and J.F. Stinneford. “The Eighth Amendment.” Amendment VIII, The United States Constitution. 2018.

Stinneford, John. “Against Cruel Innovation: The Original Meaning of Cruel and Unusual Punishments Clause, and Why It Matters Today.” Amendment VIII, The United States Constitution. 2018.

Trump, Melania, Bush, L. “Melania Trump and Laura Bush Join Debate Over Children Separated from Families at US-Mexico Border.” The Telegraph News. 2018. https://www.telegraph.co.uk/news/2018/06/17/melania-trump-hates-see-children-separated-families-amid-us/

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