THOUGHT TERMINATING CLICHES

We’re well past the 100 day mark of Trump 2.0, and a lot of metaphorical ink has been expended describing the current status of what’s transpired. There appears to be near unanimous agreement that by most measures it has been historically unprecedented in scope, ambition, and execution. Your personal opinion as to the merits of that change being either positive or negative would depend on whether you’re a member of the resistance or not. It seems to me that those opposed to Trump’s policies focus less on the actual policies being proposed than on the man himself.

In all likelihood, that is a direct manifestation of the parameters that the progressive left has chosen to emphasize. Increasingly the preferred progressive battle ground is devoid of ideas and is instead focused on emotional appeals. Statements buttressed with selective facts are chosen to control the narrative. Some of these facts may be true, but still mislead because the propaganda media has taken them out of context.

I was recently sampling wine at a tasting room in Placerville, CA, which happened to be located across from the El Dorado County Court House. There was a noisy and peaceful demonstration in progress at the Court House. The signs proffered in protest had simple phrases: Habeas Corpus Counts, Transitioning is Life Affirming, Save DEI, Trump or Musk is Hitler or a Fascist. All of the posters expressed slogans that were intended to elicit an emotional response and were presented as if ideological analysis was unnecessary.

All rhetorical arguments include, either independently or in combination some form of the following three classical components: 1. Ethos, an appeal to authority, 2. Pathos, an appeal to emotion, or 3. Logos, an appeal to logic or reason. The protesters mentioned above relied almost exclusively on pathos. I have noticed a similar trend prevalent in the comment sections of Substack essays or Newspaper articles that allow for comments. Stock phrases are used to define a person’s viewpoint in lieu of reasoned discourse. It may be even worse on social media where the various character limitations restrict long format comments, but since I don’t go there, I’m only guessing.

CJ Hopkins (cjhopkins@substack.com) in one of his recent posts brought up the concept of “Thought terminating clichés” using a quote from a book by Robert Jay Lifton: — Thought Reform and the Psychology of Totalism: a Study of Brainwashing in China. The quote accurately reflects the currant chosen battle ground of the progressive left.

“The language of the totalist environment is characterized by the thought-terminating cliché. The most far-reaching and complex of human problems are compressed into brief, highly reductive, definitive-sounding phrases, easily memorized and easily expressed. These become the start and finish of any ideological analysis.”

There is a danger to using phrases as substitutes for reasoned argument. Let’s revisit the Court House demonstration and select a single poster for deeper analysis: Habeas Corpus Counts. It is a concept that no freedom loving person would feel comfortable disagreeing with. Yet it is still a thought terminating cliché because Habeas Corpus is more complex, and less inviolate than the poster slogan would have you believe.

Historical Background:

The Habeas Corpus Writ is an order issued by a court or judge directing the custodian of a prisoner to produce that person before the court for a specified purpose. Most commonly to correct potential violations of personal liberty by examining the legality of that detention. It is an ancient legal standard recognized in the Anglo-American legal system, but interestingly, it is not found in most “Civil-Law” based countries in Europe and South America, (see Addendum).

Assize of Claredon & Magna Carter:

While not specifically delineated, habeas corpus has its roots in the Assize of Clarendon, where in 1166, England’s King Henry II held a convocation with his lords at the royal hunting lodge of Clarendon. The purpose being to clarify and improve criminal law procedures. Among the principles agreed upon was a requirement to have the accused brought before the court with the case being heard promptly, and that individuals should not be detained arbitrarily and without just cause.

Further refinement of the concept of Habeas Corpus occurred in 1215 when rebellious Barons, objecting to the capricious and oppressive rule of King John, forced him to sign the Magna Carter. Clause 38 of that document stated “No Freeman shall be taken or imprisoned, or be disseized of his Freehold (property) or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land.” The first specific documentation of the term itself was recorded in 1305 during the reign of King Edward I. It was referred to as the "writ of habeas corpus ad subjiciendum”.

Despite Habeas Corpus being an established principle of English Law, it was often ignored by Royalty or inconsistently applied by individual Court Judges. The problem stemmed from a lack of having a comprehensive statutory framework to manage the process. That changed with the English Habeas Corpus Act of 1679, which codified the writ and established clear guidelines for issuance and execution. It also included penalties for failure to comply.

Habeas Corpus in the U.S.:

The U.S. roots of Habeas Corpus trace back to the previously mentioned principals established in English Common Law. It is mentioned but not defined in the Constitution in Article I, Section 9, Clause 2, which is referred to as the Suspension Clause. It states "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In the Bill of Rights it is not mentioned, but is specifically defined by three of the amendments:

- Fifth Amendment: Protects against deprivation of life, liberty, or property without due process of law.

- Sixth Amendment: Guarantees the right to a fair and speedy trial, the right to counsel, and the right to confront witnesses.

- Eighth Amendment: Prohibits cruel and unusual punishment, which can be relevant in cases of prolonged or unjust detention.

Formal U.S. codification of the writ of Habeas Corpus was established by the Judiciary Act of 1789, but was initially only applied to federal prisoners. The Habeas Corpus Act of 1867 extended that protection to persons detained by the States. So the protester’s placard stating “Habeas Corpus Counts” reflects justifiable support for an established legal doctrine. It is also a thought terminating cliché because it implies no further thought and hence no further discussion need be undertaken. It implies that Habeas Corpus is inviolable when in fact it is not.

Suspension of Habeas Corpus:

The Constitution does not specify who has the authority to suspend the writ of Habeas Corpus, but it is generally assumed to reside within the law making authority of Congress. It has been suspended four times in US history, in each case by the president, three of whom had received prior Congressional approval.

The State of Maryland, adjacent to the Capitol, was a Slave State that did not secede from the Union. It was, however, populated by secessionists opposed to the North. President Lincoln wanted the Rebels and Southern sympathizers neutralized or imprisoned, so he suspended Habeas Corpus in April 1861, first in Maryland, and later throughout the Nation. Chief Justice Taney issued a court ruling denying Lincoln’s authority to suspend Habeas Corpus, arguing that only Congress had that right. Lincoln ignored the court and cited the “Suspension Clause” as justification for his actions. Two years later Congress passed the Habeas Corpus Suspension Act giving Lincoln the authority and making the Court’s objections moot.

There were three other suspensions of Habeas Corpus by Presidents, but all with prior Congressional approval: Andrew Johnson in 1867, Theodore Roosevelt in 1905, and Franklin D. Roosevelt in 1941, (details in Addendum). Each of these incidents reflect the strain between civil liberties and national security issues in times of crisis. It was the required flexibility that the framers of the Constitution foresaw when they wrote the “Suspension Clause”.

Fast Forward to the Present:

Over 15 million immigrants were allowed to illegally enter the Country during the Biden Administration. I described the flagrant disregard or subversion of established Immigration Laws in a previous Substack; https://removingthecataract.substack.com/p/accountability-and-immigration. President Trump was given an election mandate to reverse the damage done by these illegal immigration policies and to deport the illegal immigrants. Activist Judges have attempted to block the deportation proceedings using Habeas Corpus as a legal justification.

Habeas Corpus and previous Administrations:

For perspective, it is illuminating to take a retrospective look at the mass deportation numbers of previous administrations. Between 2001 and 2009, President George W. Bush deported over 2 million illegal aliens, and between 2009 and 2017, President Obama deported over 3.2 million. Obama primarily targeted recent arrivals and criminals, and his administration often used expedited procedures and reinstatement of prior removal orders which bypassed court hearings. There was criticism of the policies of both Executives, but when I asked AI to search for the number of court injunctions issued in any attempts to stop these previous deportations, the answer was zero. By contrast President Trump has faced over 20 injunctions by activist Judges attempting to disrupt his deportation orders. I think this data suggests that what is occurring now has less to do with a philosophical objection to deporting illegal immigrants, even violent ones, than it does with using law fare to resist anything the Trump Administration proposes.

DHS Detention and Deportation Policy:

The narrative that the progressive media is pushing is that of the Department of Homeland Security (DHS) is running rampant and collaring peaceful immigrants who are just trying to achieve the American Dream. In actuality, the DHS has a carefully prioritized policy focused on the detention and deportation of illegal aliens that pose a threat to public safety. Immigration and Custom Enforcement (ICE) is concentrating on individuals who have criminal convictions, associations with criminal gangs, or committed crimes since their illegal entry. These categories would under Section 8 of Immigration Law, make their application for asylum inadmissible. These are not people anyone should want roaming free in this country, and are certainly not the type of immigrants capable of assimilation into American society. Yet these are the very same individuals being protected from deportation by activist judges. The Biden Administration could mandate an ineffective and unsafe vaccine under the guise of public safety, but the Trump administration is being hamstrung trying to protect the public from very real threats to their safety. Note that some of these deportation injunctions are being applied to illegal aliens who have already undergone the immigration adjudication process, and have perfectly legal deportation orders issued.

Potential Solutions:

The first solution revolves around President Trump’s executive order invoking the “Alien Enemies Act of 1798”. He designated the Venezuelan gang Tren de Aragua as invaders allowing for immediate deportation and bypassing immigration proceedings. A District Judge, James Boasberg, issued an injunction ruling that gangs are non-state actors and are not covered by the Alien Enemies Act. This injunction is now headed to the U.S. Court of Appeals for the District of Columbia, and may eventually find its way to the Supreme Court. However, even if the appeal is successful it would still only apply to violent gang members.

The second possibility concerns suspension of Habeas Corpus. I’m not suggesting a blanket suspension applicable to all illegal immigrants. The majority of these cases should be administered according to established asylum adjudication procedures. This suspension would be specifically targeted at illegal aliens with established criminal convictions or gang associations. Civil libertarians would argue that these are exactly the class of immigrants that need the protection of Habeas Corpus. That argument obfuscates the point of Habeas Corpus, which is to prevent unlawful detention and imprisonment. There is no basis under Section 8 of Immigration Law that allows for their legal entry, so detention is warranted. Furthermore, these criminally connected illegal aliens are not being imprisoned but deported. Once removed, they would be free to pursue their lives back in their country of origin. This would of necessity also remove the El Salvadorian prison as a terminal destination. Such a narrowly defined suspension has a legal precedence. In 1867, President Andrew Johnson’s suspended Habeas Corpus in the State of South Carolina to combat the violence of the Ku Klux Klan gang. Such a suspension would garner immediate Supreme Court attention which would be a good development. It would afford the high court the opportunity to reassert the principal of separation of powers and restrict circuit judges from attempting to run the executive branch.

Conclusion:

This essay was a thought experiment exploring possibilities and discussing alternatives that are not possible when advocates of a position avoid debate by the use of thought-terminating clichés. This country has a very real problem with the social and economic issues that have resulted from Biden’s disastrous open border policy. A portion of the judiciary is attempting to permanentize the residency of these illegals by trying to require the Trump administration to use prohibitively costly, and time consuming individual Habeas Corpus hearings. Progressive advocacy for violent illegal aliens isn’t going to play well in 2026.

Addendum:

Civil versus Common Law:

The primary difference between civil law and the Anglo-American legal system, also referred to as common law, is the judicial function of interpretation. Common Law allows for the judiciary to consider precedent and mitigating circumstances to guide and influence court decisions.

In civil law systems, which are prevalent in most of the non-Anglo world, the law is primarily created by legislatures, leaving Judicial Courts limited leeway in the interpretation of that law.

Previous Suspensions of Habeas Corpus:

1. Abraham Lincoln 1861: previously covered.

2. Andrew Johnson: During the Reconstruction era, President Andrew Johnson supported the suspension of habeas corpus in South Carolina in 1867 to deal with issues of civil unrest and violence against freed slaves.

3. Theodore Roosevelt: In 1905, during an insurrection in the Philippines, President Theodore Roosevelt suspended habeas corpus to maintain order and suppress rebellion.

4. Franklin D. Roosevelt: Following the bombing of Pearl Harbor in 1941, President Franklin D. Roosevelt indirectly suspended habeas corpus by authorizing the internment of Japanese Americans and issuing Executive Order 9066, which allowed for the detention of individuals without due process.