Guest post by Rosa Baum, a first year student in a four-year dual degree program, pursing a JD and a Masters in Public Policy from Harvard Law School and the Harvard Kennedy School. She is originally from Boulder, Colorado. She focuses on the intersection of law and policy specifically in the fields of immigration and refugee policy.

The civil rights and civil liberties of Americans who live along the United States-Mexico border needs to be better incorporated into the legal dialogue surrounding the construction of the border wall. Legal challenges, under due process claims, have been hurled at the construction, but most have been futile. They exist only as hollow symbols. It has been a struggle to get Congress to take them seriously as substantive matters. Critics note that the Environmental Impact Assessments required before construction fail to identify extensive environmental harms. They also fail to provide and develop alternatives to the wall—a step generally required by law.

On April 1, 2008, DHS Secretary Michael Chertoff waived many environmental and other laws, making it unnecessary for the federal government to comply with normal environmental protection requirements in preparation for the wall’s construction. During the subsequent phase of the project, DHS acquired properties upon which to build—making offers mostly in the $4,000-$10,000 range per property and filing condemnation lawsuits against those who did not voluntarily agree to sell. But the lands that DHS purchased weren’t the only ones affected. While the parts of the wall that have been erected sit on land now owned by DHS, they deprive many neighboring owners of the use of their property that lies on the other side of the wall. They have also generated intangible losses, as the wall cuts through cross-border and cross-cultural communities.

Dr. Eloisa Tamez, a U.S. citizen with Spanish and Native American heritage who traces her family estate to a grant from the King of Spain, has had some success with due process challenges regarding DHS failure to conduct “consultations” with local landowners. But the Supreme Court has been unwilling to take up questions regarding the broad grant of power to DHS. This has led to complaints that the government is in violation of the American Declaration—an international legal obligation of the Organization of American States, of which the U.S is a member. Other regions of the world have shown a stronger commitment to civil rights and liberties in relation to border walls.

The disputed territories of Israel/Palestine, for example, are considered some of the most disputed and internally hostile areas on the planet. Their boundaries are certainly more fraught than the border between the U.S. and Mexico. Yet in the 2004 case Beit Sourik Village Council v. Government of Israel, the Supreme Court of Israel, acting as the High Court of Justice, held that the construction of a wall/fence—allegedly for security reasons—caused harm disproportional to its desired ends. The justices granted the Israeli military deference in its assertion of security needs but, following international humanitarian law and domestic law, found that where civilian interests are involved, even military decisions are bound by the principle of proportionality. The fence in question ran approximately 40 kilometers, requiring seizure of roughly 1,000 acres of land, crossing through eight villages, affecting the lives of 35,000 residents, and depriving local owners of about 750 acres of land planted with tens of thousands of olive and fruit trees and other crops.

Subjecting the U.S./Mexico wall through a similar proportionality test could be useful. First, does the objective relate to the means? Second, do the means injure individuals to the least extent possible? And finally, is the damage proportional to the gain achieved? The Israeli court found that the wall did not pass the final prong—that its placement undermined the balance between the obligation to preserve security and the duty to provide for the needs of local residents. Would the U.S./Mexico wall pass muster? Israel does not have a written constitution, as its founders were skeptical about allowing courts to invalidate laws. Yet our nation, so proud of its constitution and its championing of the rights of individuals, lacks the courage even to consider the question.