Is It Constitutional to Ban the Admission of Muslims to the United States ?

Yesterday, I was commenting on FB that my question of yet a day before, also on FB, had not been answered. The question regarded Donald Trump’s proposal to suspend immigration of Muslims into the United States. The idea was loudly rejected by many, including prominent Republicans, on several grounds. One ground was that it was “unconstitutional.” I asked why anyone would think that and I had got no answer on FB when I wrote, 24 hours later, around 6 or 7 pm .

Only on hour after commenting on the lack of answer, I got a swift, convincing response through Fox News. The network’s flamboyant token liberal, Geraldo Rivera argued that the Trump proposal was unconstitutional because of Article VI of the US Constitution, precisely. Article VI, he said several times, forbids religious tests. He affirmed it repeatedly, just like that. Here is what Article VI actually says:

Article VI, (3rd paragraph, complete)
” The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (Emphasis mine, not Thomas Jefferson’s.)

Obviously, the people Trump wants to exclude are not applying for public office but for admission to this country. They are not even electable to any office, even municipal dog catcher. This part of the Constitution does not apply to them, same as it does not apply to me.

Rivera bragged several times during the same show about his legal training. He even specified that he had graduated from law school “13th of several hundreds.” He is not legal slouch. I don’t believe he could not recognize his misinterpretation of the Constitution, when I, a former illegal alien with no legal training at all did. I think he was simply lying. It happens all the time. I keep catching liberals of all ranks and stations in lies or otherwise in bad faith. I wonder if there is a commentator on the other side of the aisle who says the same about conservatives, of course. And please, don’t throw Donald Trump at me. There is no reason to believe he is a conservative.

Digression: I know some will think I set the bar really low, that it isn’t difficult to catch Geraldo lying or stretching the truth, the facts, reality, etc. But, I disagree. I think he is just a precursor or a path opener. He tells the same untruths earlier and in a more direct way than other liberals

The view that the Trump proposal to suspend Muslim immigration is not unconstitutional, that it is, in fact, constitutional, leaves intact all other grounds for rejecting it. Myself, I have made another proposal on FB, I think, much before Trump opened his big mouth. I think America is not a country that can remain indifferent to the plight of children and women war refugees. We really can’t allow tens of thousands or more to live and die in the cold without hope. I believe we can take in any number of children from Syria and from Iraq, and their mothers. (And yes, I realize that recent events in San Bernardino demonstrate that being a mother of a small child may not be enough to repress a woman’s enthusiasm for mass murder and martyrdom.) Under what status children and women should be taken in is another question. Sheltering people in an emergency should not legally imply permanent residency or citizenship. Congress can create a status of temporary resident.

Muslim men of military age are another story. They don’t belong here. The fact that a handful of them will turn out to be really terrorists is not my main reason to think so. Rather, I believe they should be in Syria and in Iraq fighting the butcher Assad and the savages of ISIS. At a time when more and more Americans are risking their lives there to rid of the world of those monsters, males from the area who are capable to bear arms should not be playing volleyball in American parks. The Kurds of both Syria and Iraq are showing the way. Let Muslim Arabs join them. If they don’t want to fight, against the beasts in their countries, why should we, or give them room and board?

I have no proposal regarding Muslims from countries other than Syria and Iraq who were clearly included in Trump’s ban. I believe banning them for a period would be constitutional. Whether it would good for America, I am not sure at this point, probably not.

Here is one thing to worry about: Scholars have agreed recently that the President of the United States may exclude any category of persons under his own authority. What if Trump is actually elected?

PS IN case you are wondering, I feel no personal enmity toward Muslims. I have known Muslims all my life and I have liked pretty much every one of them. I am baffled by the fact that there does seem to be a coincidence between Islam and terrorism, right now. And, I repeat, once more, that the victims of Islamic terrorism are mostly Muslims.

About Jacques Delacroix

I write short stories, current events comments, and sociopolitical essays, mostly in English, some in French. There are other people with the same first name and same last name on the Internet. I am the one who put up on Amazon in 2014: "I Used to Be French: an Immature Autobiography" and also: "Les pumas de grande-banlieue." To my knowledge, I am the only Jacques Delacroix with American and English scholarly publications. In a previous life, I was a teacher and a scholar in Organizational Theory and in the Sociology of Economic Development. (Go ahead, Google me!) I live in the People’s Green Socialist Republic of Santa Cruz, California.
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9 Responses to Is It Constitutional to Ban the Admission of Muslims to the United States ?

  1. Oliver Q. says:

    The unfortunate truth is that technically, under present constitutional doctrine dating back to as late as 1889 and the exclusion of Chinese laborers. The president also has a narrow bit of authority to bar entrance of aliens if there’s a legitimate concern that certain people pose a risk to safety of people.

    Such a plan, in modern terms, would likely be deemed unconstitutional though by any standard used. We now view the Chinese Exclusion Act and similar acts as embarrassments. And such a plan may not violate Article VI, but would certainly violate the spirit of it.

  2. Oliver: I believe you are wrong. There is no part of the Constitution that prevents either Congress or the President from declaring any broad or narrow class of aliens inadmissible into the US. The word “alien” matters. Aliens have no right except the rights of persons, human rights. If human rights included the right to move anywhere, the ship American would have sunk a long time ago..

    Please, correct me if I am wrong but do it with actual references. I am open minded but rigorous, I like to think.

  3. Oliver Q. says:

    I’m confused about what you think I’m wrong about, exactly. Although part of my response managed to vanish, my main point was that at present, Trump’s plan is technically constitutional.

    Congress holds broad authority to regulate immigration and naturalization (Fiallo v. Bell, 1977).

    I’m saying that despite that, and present law, it’s likely that barring people simply due to religious preference would not hold constitutional muster, and today is a more complex world than 1889.

  4. Oliver: That’s the part I think is wrong: “I’m saying that despite that, and present law, it’s likely that barring people simply due to religious preference would not hold constitutional muster, and today is a more complex world than 1889.”

    I am not pessimistic enough to believe that the courts and, eventually, the Supreme Court would make up constitutional principles where there is not a shadow of one involved, no ambiguity at all.

  5. Oliver Q. says:

    My position isn’t grounded in pessimistic thought, as much as it is principle. Privacy issues related to abortion (Roe v Wade) is a really good example that I would suggest you to read to maybe gain insight. Even to some extent the two most recent high court cases concerning the Affordable Care Act.

    Your position seems to stem from a view that the constitution should only be applied as it is read, or what the founders wanted. But that’s a scope for which to interpret the constitution. The text, the meaning of the words, the intent – is an extremely narrow view of the law. Very similar to Scalia and Thomas.

    But there are other forms of constitutional interpretation, such as functionalism, balancing, and even past precedent, that can help come to a decision.

    Case in point, Loving v Virginia rules that anti-miscegenation laws were unconstitutional. There were numerous cases between 1881 and 1948 where the courts found the laws to be constitutional. Perez v Sharp was a California case in 1948 that ruled a state based statute was unconstitutional. Between 1948 and 1967 many states repealed their anti-miscegenation laws. Those two trends are what strongly led to a Supreme Court decision that effectively overturned a great deal of precedent. The same holds true for the recent same sex marriage case.

    If we followed Scalia’s method of interpretation, I dare say the world would be a much more grotesque place to live.

  6. Eric Posner thinks it probably is constitutional to ban Muslims entering; and I would back his expertise over Geraldo Rivera.
    http://ericposner.com/is-an-immigration-ban-on-muslims-unconstitutional/

  7. Oliver: It’s true that my bias affects my judgment here. However, the more one moves away from the Scalia approach and, apparently, the more one moves toward the approach you favor, the less of a constitution we have. At some point – not very far away – “unconstitutional” simply means, “I don’t like it.” It seems to me that what the many who declared Trump’s proposal unconstitutional were doing. I think this is right because few, if any , gave any justification for their assertion. I seized on Rivera because, imprudently, he gave a reference. It turned out to be dramatically wrong.

    • Oliver Q. says:

      I don’t really favor one approach over another, I’m really in favor of applying multiple approaches to reach a decision. My critiques of Scalia is simply that he’s very narrow minded in only, seemingly, applying one form of interpretation, which in itself is very narrow.

      I certainly see the err in precedent being overruled by matters unrelated to constitutional ones, which of course is another conversation.

      That being said, I certainly question the assumption that the constitution ceases being “the constitution” simply due changes in interpretation.

  8. Thank you, Lorenzo. This is very useful.

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