Personally, I am not opposed to immigration. My families came over just after the turn of the last century. All the hysteria about Syrians and Muslims in this country reminds me of how miserably we treated the "Japs" during and after WWII. Internment camps, anyone? Not the proudest moment in our history. Why we as a nation would want to relive that gross hatred and injustice is beyond me. David also makes a point about democracy: our founding fathers knew that unbridled democracy can be harmful--just look at today's "low information voters." They tried to balance fair representation with good government because they knew that mob justice is no justice.
David says, "Donald Trump is turning
out to be a great constitutional and political science teacher. Not a
scholar, mind you—I am not claiming that he actually knows anything about
anything, much less the Constitution. But he is teaching us why democracy
may NOT be the best idea since sliced bread.
"One reason is the “stampede”
effect—where everyone agrees what has to be done, yesterday, and
you risk being stomped to a pulp under the feet of said everyone if you dare
offer a contrary opinion or course of action. Right now, for example, everyone
agrees that The Donald’s proposal to ban (at least temporarily) all
Muslim immigrants is (a) “blatantly unconstitutional” and (b)
political suicide. This is so obvious to everyone that nobody
bothers to crack open a law book on the subject. Politically correct
emotions are all that is necessary.
"Except for James Taranto
of The Wall Street Journal (below). He definitely thinks it may
not be political suicide, and he offers some suggestions of why it may actually
be constitutional. As a foot soldier of democracy, you really should read
his article just to see that there may be a second opinion on these
matters (horrors!). I am not a Trump fan, I do not like his
Muslim-exclusion plan for a number of reasons, I don’t think it is
necessary, and I doubt very seriously that I will vote for him—if anyone—but
I do find it stimulating occasionally to turn off the lights, climb under the
covers of my bed, turn on my pocket flashlight, and secretly read from The
Forbidden Book of Politically Incorrect Delusions. Join me. I
won’t tell on you."
OK, David, m'dear--I crawled under my covers with my flashlight and read, so I guess I'm telling on myself.
Did Trump Just Win?
His Muslim-exclusion idea is likely to prove popular.
By James Taranto
Dec. 8, 2015 2:48 p.m. ET
The
Onion “reports” that “increasingly
nervous local man Aaron Howe responded to Donald Trump’s call to ban
Muslims from entering the U.S.
Monday by once again stating this would be the
end of the Republican frontrunner’s campaign, sources confirmed.” It’s
the seventh time since June that the area man has offered such a prediction.
The Onion is satirical, of course, but in real life a similar story could have
been written about any number of people, including political pundits.
For our part, we’ve forecast the end of Trump’s campaign maybe
four or five times. But not this time. Trump’s proposal, whatever the
merits, looks to us like a political masterstroke, in large part because of the
overwrought reactions it has prompted from Democrats, Republicans and the media
alike.
Here’s the proposal, as announced in a
press release yesterday titled “Donald J. Trump
Statement on Preventing Muslim Immigration”:
Donald J. Trump is calling for a total and complete shutdown
of Muslims entering the United States until our country’s representatives
can figure out what is going on. According to Pew Research, among others, there
is great hatred towards Americans by large segments of the Muslim population.
Most recently, a poll from the Center for Security Policy released data showing
“25% of those polled agreed that violence against Americans here in the
United States is justified as a part of the global jihad” and 51% of
those polled, “agreed that Muslims in America should have the choice of
being governed according to Shariah.” Shariah authorizes such atrocities
as murder against non-believers who won’t convert, beheadings and more
unthinkable acts that pose great harm to Americans, especially women.
Mr. Trump stated, “Without looking at the various
polling data, it is obvious to anybody the hatred is beyond comprehension.
Where this hatred comes from and why we will have to determine. Until we are
able to determine and understand this problem and the dangerous threat it
poses, our country cannot be the victims of horrendous attacks by people that
believe only in Jihad, and have no sense of reason or respect for human life. If
I win the election for President, we are going to Make America Great
Again.”
The
Washington Post has a summary of reactions from
Trump’s rivals for the GOP nomination:
Most of Trump’s GOP rivals issued statements opposing
Trump’s idea. [Jeb] Bush wrote Monday on Twitter that Trump is
“unhinged,” while Ohio Gov. John Kasich said the proposed ban
“is just more of the outrageous divisiveness that characterizes his every
breath.” New Jersey Gov. Chris Christie called it “a ridiculous
position,” and Sen. Marco Rubio (Fla.) tweeted: “His habit of
making offensive and outlandish statements will not bring Americans
together.” [Ted] Cruz said in an NBC interview that “there are
millions of peaceful Muslims around the world.”
Sen. Lindsey O. Graham (S.C.) said Trump’s escalating
rhetoric about Islam endangers U.S. soldiers and diplomats operating in the
Muslim world: “The effects of this statement are far-reaching.”
Democratic reactions were similar in tone and even higher in volume. And in
an interview with radio host Hugh Hewitt,
Dick Cheney said: “I think this whole notion that
somehow we can just say no more Muslims, just ban a whole religion goes against
everything we stand for and believe in. I mean, religious freedom’s been
a very important part of our history and where we came from.”
As for the pundits, the left-wing ones said what you’d expect.
Self-proclaimed centrist
John Avlon declared at the Daily Beast: “This is a
time for choosing between our best traditions and our worst fears. If you care
about the Constitution, the time has come to take a stand against Trump.”
But Avlon only fulminates; he offers not a word of legal analysis.
National Review’s
Jim Geraghty does offer a few words. He cites Article VI of
the Constitution, which provides that “no religious test shall ever be
required as a qualification to any office or public trust under the United
States,” and the First Amendment’s Free Exercise clause.
In the New York Times, an Ivy League law professor weighs in:
Putting the policy into practice would require an unlikely
act of Congress, said Stephen Yale-Loehr, a professor of law at Cornell and a
prominent authority on immigration.
Should Congress enact such a law, he predicted, the Supreme
Court would invalidate it as an overly restrictive immigration policy under the
equal protection clause of the 14th Amendment.
“It would certainly be challenged as
unconstitutional,” he said. “And I predict the Supreme Court would
strike it down.”
All of these claims are mistaken. Quite obviously the Constitution’s
provision on religious tests for public office has no application to
immigration policy. The Equal Protection Clause of the 14th Amendment is
equally irrelevant, as it applies only to states. (It does prohibit state
discrimination against aliens, including in some contexts illegal aliens, but
decisions about which aliens to admit are entirely under federal purview.)
Yale-Loehr is correct that the Trump proposal requires an act of Congress,
but that act has already been enacted.
Title 8,
Section 1182 of the U.S. Code provides in relevant part:
Whenever the President finds that the entry of any aliens or
of any class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such period as
he shall deem necessary, suspend the entry of all aliens or any class of aliens
as immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate.
What about the First Amendment? Would a religious exclusion for immigrants
violate their right to free exercise?
That is a novel legal question; as far as we know Congress has never
enacted, nor the executive branch practiced, such an exclusion. But the 1972
case
Kleindienst v. Mandel strongly
suggests the Trump proposal would pass muster.
Ernest Mandel, a Belgian journalist and self-described “revolutionary
Marxist,” planned to visit the U.S. for an academic conference. He was
denied entry pursuant to a (since-repealed) law that excluded aliens “who
advocate the economic, international, and governmental doctrines of world
communism or the establishment in the United States of a totalitarian
dictatorship” or “who write or publish . . . the
economic, international, and governmental doctrines of world communism or the
establishment in the United States of a totalitarian dictatorship.”
Mandel and his colleagues argued that the exclusion violated the right to
free speech. In a decision for a 6-3 majority, Justice Harry Blackmun wrote
(citations omitted):
It is clear that Mandel personally, as an unadmitted and
nonresident alien, had no constitutional right of entry to this country as a
nonimmigrant or otherwise.
The appellees concede this. Indeed, the American appellees
assert that “they sue to enforce their rights, individually and as
members of the American public, and assert none on the part of the invited alien.”
The case, therefore, comes down to the narrow issue whether
the First Amendment confers upon the appellee professors, because they wish to
hear, speak, and debate with Mandel in person, the ability to determine that
Mandel should be permitted to enter the country or, in other words, to compel
the Attorney General to allow Mandel’s admission.
To that question, the justices also answered “no.” That’s
not to say Mandel had no free-speech rights under the U.S. Constitution. Had
the government sought to forbid publication of his work, or to prevent or
punish his participation in the conference by electronic means from outside the
country, he would have had a strong claim.
But the government’s authority to set immigration policy, at least as
applied to nonresident aliens, outweighs any free-speech claim an alien may
wish to assert. Logic would suggest the same is true of the First
Amendment’s other protections.
(The Hill’s
Ben Kamisar reports that he asked the Trump campaign
yesterday if the ban would also apply to U.S. citizens, and a spokesman
replied: “Mr. Trump says, ‘everyone.’ ” Excluding
U.S. citizens from re-entering the country would be plainly unconstitutional.
Trump later backtracked, consistent with the generally offhand character of his
campaign. It’s worth emphasizing that like “Muslim
databases,” this very bad idea originated with a reporter, not Trump.)
The proposal itself, however, was not so offhand.
Andrew Prokop of the young-adult website Vox argues that
Trump had two “strategic objectives” in mind:
First, he ensures his continued dominance of the headlines.
Second, he proves to the segment of Americans who might
secretly agree with him that, once again, he’s willing to say the things
ordinary politicians of both parties won’t.
But why “secretly”? Another Vox article, written by
Zack
Beauchamp and also published yesterday, calls attention to a poll by the
Public Religion Research Institute that asked respondents
if they agreed with the statement “The values of Islam are at odds with
American values and way of life.”
Vox’s headline announces the results for Republicans, 76% of whom
agree. But the view is shared by a majority of all respondents (56%) and
independents (57%) and a substantial minority of Democrats (43%). Blacks and
Hispanics are evenly divided, and majorities of every Christian subpopulation,
including black Protestants, agree.
Our own view of the question is complicated. Certainly Islam and the
American way of life are compatible inasmuch as America is capable of welcoming
Muslims who are not Islamic supremacists. On the other hand, it’s always
struck us that categorical statements to the effect that Islam is “a
religion of peace” are far more hortatory than empirical—which is
to say that there is a gap between Islam as it actually exists and Islam as
President Bush or President Obama would like it to be. How wide that gap is,
and how dangerous, we do not know.
Thus Trump’s proposal for a pause in Muslim immigration “until
our country’s representatives can figure out what is going on”
strikes this columnist as entirely reasonable. That’s not to say
it’s necessarily a good idea. There are potential costs in
American-Muslim relations both internationally and domestically, and
humanitarian costs as well. There are practical questions about how it would be
implemented. The religious-freedom argument, although legally empty, is not
without moral force.
Instead of debating the proposal in a reasoned way, the political
class—both parties—and many in the media are treating it as a
thoughtcrime. Yet the PRRI poll suggests a large majority of Americans are
thinking along similar lines.
The Washington Examiner’s
Philip Klein summed up the politics in a tweet yesterday:
“@realDonaldTrump will get days of coverage in which GOP rivals, Obama,
Clinton, media, will all sound same. This is bad for him how?”
…
