Huffington Post (Op-Ed)
By Ivan Eland
December 14, 2015
Legal
scholars don't agree on whether Donald Trump's demagogic proposal to
temporarily ban any of the world's 1.6 billion Muslims from entering the
United States would
be constitutional. That disagreement says more about the sorry state of
the constitutional law profession than it does about the quality of
Trump's proposal.
Over
the course of American history the U.S. courts, including the Supreme
Court, have "interpreted" the Constitution into a document that the
nation's founders would
hardly recognize. For example, when making his proposal for banning
Muslims, Trump spoke favorably of Franklin D. Roosevelt's internment of
Japanese-Americans (and Japanese residents) during World War II. This
episode has been properly recognized by historians
as one of the darkest in American history, yet the Supreme Court at the
time had no problem with this flagrant violation of the Fifth
Amendment's due process clause that no person (the Constitution does not
even require a person to be a citizen to get this
protection) shall "be deprived of life, liberty, or property, without
due process of law" or the Sixth Amendment's requirements of a jury
trial.
The
incarceration of Japanese-Americans has bearing on the current case of
Muslims, because it derives from the same irrational fear that gripped
the nation after the
Japanese attacked Pearl Harbor--only now, the excuse doesn't exist that
today's threat seems as dire. Even then, in the actual war zone of
Hawaii, the restrictions on Japanese-Americans and Japanese residents
were less harsh than in the continental United
States, thousands of miles from Hawaii. Furthermore, two federal
government studies, including one by the FDR White House, had shown that
Japanese-Americans and Japanese residents were loyal to the United
States and posed no security threat. FDR, always the
consummate politician, reprehensibly incarcerated more than 100,000
innocent people in prison camps merely to respond to the war hysteria of
the citizens of California, an important electoral state. Many of these
Japanese-Americans lost everything. The Supreme
Court also upheld bans on the entry of Chinese laborers in the late
1800s--another dark episode in American history.
Eric
Posner, a conservative legal scholar from the University of
Chicago--who purports, as many conservatives do, to be standing up for
the founders' vision of the Constitution--says
of Trump's ban on Muslims: "I don't actually think it would be
unconstitutional. The president has a huge amount of discretion under
the immigration statute." Posner also reportedly said that the same
protections given citizens do not apply to people who are
neither American nor in the United States.
On
the first point, it is clear that the courts have given Congress and
the president broad discretion on immigration issues. On the second
point, most legal scholars
do agree with Posner that a ban on allowing Muslim U.S. citizens to
enter the country would be unconstitutional.
Yet
historically, the courts have probably let the Congress and the
president usurp too many rights under the immigration statutes, as the
ban on Chinese laborers indicated.
The federal government does have control over immigration, but in this
case the First Amendment, which states that the "Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof." The Constitution, in its
various parts, regularly distinguishes between "citizens" and "persons"
or "people". Later on in the First Amendment it speaks of "people," not
"citizens," which should lead the common reader to infer that--no
matter what the courts, or the constitutional
scholars who usually populate them, say--citizens have no greater
standing here than non-citizens. A temporary ban on Muslims also
violates at least the spirit of the equal protection clause of the
Fourteenth Amendment, which prohibits state governments from
denying any "person" the equal protection under the law.
Legalities
aside, Trump's proposal is moronic, because banning 1.6 billion Muslims
to stop a few terrorists, who just happen to be Muslims, doesn't solve
the problem.
Why didn't Trump advocate banning incoming Christians after the recent
lethal attack on the Planned Parenthood facility in Colorado Springs?
Furthermore, although extreme minority interpretations of Islam are part
of the Islamist terrorism problem, the main
reason they attack the United States and its allies is just the latest
manifestation of the reaction to the West's post-World War I colonialist
and neo-colonialist foreign policy toward the Middle East region. Even
with the carnage of the 9/11 attacks and
the much lesser death toll of the San Bernardino shootings, the West
has killed many more Middle Eastern Muslims for dubious reasons than
vice versa.
Trump's
solution is just a more extreme version of the denial that the West has
shown since 9/11 that radical Islamist terrorism is retaliatory in
nature. The reality
for Middle Eastern Muslims has become what George W. Bush claimed after
9/11: the United States needs to fight them over there so it doesn't
have to fight them over here. For Middle Eastern Muslims, they are
beginning to strike over here to ultimately get
the United States to withdraw from over there. Thus, Trump's proposal
is just one more example of a false solution based on hysteria. The real
solution is not to live in such fear in America--retaliatory Islamist
terrorist attacks will end at home if the U.S.
and allied governments quit needlessly poking the hornet's nest in the
Middle East, which citizens should pressure their governments to do.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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