The Bill of Rights strictly limits the power of public authorities, in order to create a civic space that is open and founded on the recognition of the humanity of every person, where it is safe to be your own person, manage your own personal connections, and to share ideas freely and openly, without threat of persecution or authoritarian punishment. 

The First Amendment is widely discussed for its guarantee of freedom of speech or expression, freedom of the press, and free exercise of religion. It is often thought, in the public consciousness, that the right to protest is linked to the right to free speech, or that the right to peaceably assemble is limited to the right to protest. 

In fact, “the right of the people peaceably to assemble” is deliberately broad—requiring the Government to recognize that all people have a right to move freely in their communities, form associations, whether formal or informal, and to remain free from harassment and intimidation. The peaceable assembly clause also, clearly, supports the right of the people to legislate, to further limit the scope and reach of public authority. 

We know this broader meaning is essential to the peaceable assembly clause, because of the other elements of the Bill of Rights that aim to prevent arbitrary and abusive use of public authority. For instance: 

• The Third Amendment bars the forced installation of military personnel in private homes, and by implication in the streets of American communities.
• The Fourth Amendment prohibits—without exception—any search or seizure of “persons, houses, papers, and effects” without a judicial warrant issued “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
• The Fifth Amendment grants due process rights to all people, without exception; in case this is unclear, the Fourteenth Amendment guarantees equal protection of the law to all people. If Donald Trump is innocent until proven guilty, so is every asylum seeker, and every person whose name might appear on a list assembled by Immigration and Customs Enforcement.
• The Eighth Amendment clearly prohibits any “cruel and unusual punishments”, without exception.
• The Ninth Amendment ensures that all human rights, not only those written into the Bill of Rights or federal statutes, are protected. Rights have primacy over power, always.

The Sixth Amendment gets too little attention in popular culture, but the rights it supports are well known. The full text of the Sixth Amendment reads: 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Sixth Amendment includes no citizenship condition; it applies to all human beings who might be subject to the jurisdiction—meaning legal action—of the United States. The Sixth Amendment also specifically grants all defendants the rights “to be confronted with the witnesses against him” and “to have compulsory process for obtaining witnesses in his favor”. 

Removal of people accused of paperwork violations from one jurisdiction to another, so that the Executive branch might make it more difficult for them to mount a defense, is a direct and deliberate violation of the Bill of Rights, and so of the fundamental rights of every American. That one is a citizen does not make one less vulnerable to such abuses; only the universal application of the Bill of Rights ensures that American citizens are actually free people safe from authoritarian abuse. 

Providing “facial recognition technology” to agents—or to people the Government wishes to treat as agents—of the bureau of Immigration and Customs Enforcement cannot and does not erase the Bill of Rights. That agents might have access to a database (a list of names) and that software added to their smartphone might assert that a particular individual’s face “matches” data linked to a name in that database does not replace the Fourth Amendment requirement that a judicial warrant be obtained in order to formalize that accusation and initiate legal action against a known suspect. 

Even if such technology were 100% accurate, in all cases, this would still be true. The Fourth Amendment prohibition against warrantless search and the Fifth Amendment prohibition against arbitrary detention both make such an action unconstitutional and unlawful. Worse still, “facial recognition” technology is notoriously inaccurate.

Many have experienced this failing at airports, where automatic identification kiosks managed by Customs and Border Protection fail to accurately link a person to their own passport photo. The Trump administration has been seeking to require even highly vulnerable senior citizens to appear in person to claim Social Security benefits, in part on the premise that video conferencing using facial recognition cannot be trusted to “match” a person to their own Social Security records.

We note, as critical insights for judges, juries, defense attorneys, rights advocates, and for lawmakers and all Americans, this warning from Nathan Freed Wessler, deputy director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project, sent to 404 Media by email:

“Face recognition technology is notoriously unreliable, frequently generating false matches and resulting in a number of known wrongful arrests across the country. Immigration agents relying on this technology to try to identify people on the street is a recipe for disaster. Congress has never authorized DHS to use face recognition technology in this way, and the agency should shut this dangerous experiment down.”

The Bill of Rights provides universal and irreducible due process rights, in order to prevent mistakes, abuses, and injustice. By requiring judicial oversight of all claims by Government of violations of law, and then further requiring that judges be supervised by juries of citizens, the Bill of Rights aims to ensure arbitrary exercise of power can never replace law and justice.

Arbitrary search and seizure, arbitrary detention, paramiliary raids of peaceful communities, places of worship, schools, hospitals, and sporting venues, are direct violations of the Bill of Rights. If those who wish to ignore those rights can do this to vulnerable immigrants, they can do it to you. Fortunately, all we have to do to prevent that is to ensure the Constitution is upheld, in every case, for everyone.