By Ellen Cardone Banks
Western New Yorkers assembled outside the Justice Robert H. Jackson United States Courthouse recently to protest the incarceration of children who were taken from their parents at the southern border. This extraordinary building, with the whole U.S. Constitution engraved on its glass exterior, was the appropriate place to gather, as it is named for Justice Jackson, a Western New Yorker. He was the chief prosecutor at the Nuremburg trials, which dealt with the aftermath of the worst that can happen when groups of people are stigmatized, falsely accused of crimes and called “animals.”
Justice Jackson was on the Supreme Court when it unanimously overturned laws that enforced school segregation in Brown v. Board of Education. He wrote a famous dissent in the Korematsu case on internment of Japanese-American citizens and legal residents during World War II. In this decision he wrote that when racial discrimination is permitted by law, “The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes.”
Chief Justice John Roberts referred to Korematsu in upholding the Trump travel ban, officially canceling it as U.S. law, but he ruled that the current matter is different. Perhaps it is not different enough: Preventing whole nations of people from entering the United States is, in effect, racial, in the conventional sense of the word. And regarding the captured and imprisoned children: When a president says that desperate families seeking asylum “infest” our country, that is the “loaded weapon” Justice Jackson predicted.
The United Nations adopted a Convention on the Rights of the Child in 1979; all member nations have endorsed it except the United States. (U.S. Senate opposition was fueled by incorrect assertions that it would override the Constitution or eliminate parental authority.)
The convention states: “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. … States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.” (“States Parties” here refers to nations.) The U.S. should endorse this convention and, meanwhile, follow its principles.
In spite of court rulings to return these children to their parents, compliance has been delayed by the government’s failure to keep records of the children’s locations, and burdensome investigations of “parental fitness.” These traumatized children must be reunited with their parents immediately and allowed to stay together in homelike surroundings pending their court dates. Nothing like this should ever happen again in the United States.
Ellen Cardone Banks is a developmental psychologist and professor emerita at Daemen College.