Susan Herman is Centennial Professor of Law at Brooklyn Law School and president of the American Civil Liberties Union.
Warren was arrested and charged with conspiring to transport and harbor people who were in the United States illegally just a few hours after his group, No More Deaths, posted a video showing Border Patrol agents systematically emptying water jugs that members of the group had left in the Arizona desert, where thousands of migrants had died. After a 10-day trial, Warren’s first jury was unable to reach a verdict, eight voting to acquit and four to convict. The government has dropped the conspiracy charge, but is trying again for a conviction on charges of harboring the undocumented men.
The French take a different approach. Olive farmer Cédric Herrou, whose operation has been nicknamed the “French underground railroad,” had helped more than 250 undocumented African migrants to find refuge before his arrest in 2016. He provided migrants crossing into France with shelter, food, employment and sometimes strategies for avoiding the authorities. In 2017, he was convicted of violating French law by “facilitating the illegal entry or movement of foreign nationals,” but his conviction was reversed by the French Constitutional Council on the ground that by helping these desperate people, Herrou was honoring the constitutional principle of “fraternité,” which trumped the provisions of the criminal statutes.
In the United States, a court has no authority to dismiss the charges against Warren on the ground that he was treating migrants, documented or not, as his brothers. The French council had that option because the French state their fundamental values as a triumvirate: “liberté, égalité, fraternité.” The council said fraternité included “the freedom to help one another, for humanitarian reasons, without consideration as to whether the assisted person is legally residing or not within the French territory.”
The U.S. Constitution, by contrast, embraced many forms of liberty in its original 18th century version. The 19th century post-Civil War Reconstruction added a form of equality (“the equal protection of the laws”) as a constitutional ideal. But fraternity is not mentioned in the U.S. Constitution or our other foundational documents and rhetoric. Our national motto refers only to “liberty and justice for all.”
What is it that we miss by not including fraternity as one of our defining values?
To be sure, the French concept of fraternité incorporates some communitarian values that clash with our traditional American vision of liberty. For example, French law prohibits Muslim women from wearing face veils in most public places. That ban was upheld by the European Court of Human Rights on the ground that “preservation of a certain idea of ‘living together’ was a legitimate aim of French authorities.” Individual people, as members of the French community, are required to make themselves available for social communication even at the expense of their own religious freedom.
In the United States, the First Amendment protects our liberty to wear religious garb in public in most instances. We do not regard the community as having any general veto over our individual religious expression. Homogeneity and secularity are not values that our Constitution embraces. But other elements of fraternity would serve as a valuable complement to our ideals of liberty and equality.
The Universal Declaration of Human Rights, Eleanor Roosevelt’s expansion of the Bill of Rights, which was adopted by the United Nations in 1948, gives primacy to a heterogeneous form of fraternity. Its preamble asserts that “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The first article states, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood.”
This is the concept underlying the French Constitutional Council’s decision on Herrou, implementing a humanitarian value that should be attractive to Americans as well. But Warren has to depend on the very limited, procedural form of fraternity our Constitution does provide: the Sixth Amendment commitment to trial by jury.
It is a national embarrassment that Congress and federal prosecutors have not provided more space for humanitarians. But American jurors have the power to decide how to apply, and even whether to nullify, criminal laws. We can only hope that those 12 Arizona citizens sitting in judgment of Scott Daniel Warren understand that we cannot truly enjoy liberty and equality without respecting fraternity.