By Andrew C. McCarthy — December 12, 2015
On Monday, the Donald Trump campaign sent out a statement saying the United States should close its borders to all Muslims
I appreciate being held in “(otherwise) . . . considerable esteem” by Charles Krauthammer. Not only is the feeling mutual; from my end, I would even omit the “otherwise.” That said, I am dismayed by his specious response to my legal analysis of Donald Trump’s proposed moratorium on Muslim immigration to the United States. I am personally disappointed that Charles has distorted my position, portraying me as a Trump apologist. But that is almost beside the point. His rebuke is counterproductive to the defense of our national security — about which Krauthammer and I both care deeply — because it makes solving a vexing problem that much more difficult.
Dr. Krauthammer fails to address the substantive legal points I made. Instead, I get the back of his hand for explaining that I focused mainly on the “final form” of Trump’s moratorium proposal — the retreat to a temporary ban on foreign Muslims, after Trump initially suggested such a ban on all Muslims. Charles finds this “hilarious” because, he concludes, I am taking Trump’s policymaking process seriously – “as if Trump’s barstool eruptions are painstakingly vetted, and as if anything Trump says about anything is ever final.”
As Dr. K must know (since it is quite apparent from the post he attacks), I am not a Trump supporter, much less a Trump apologist. I confess to not being Trump-obsessed: I just don’t think he is going to be the nominee and life is too short to get that whipped up about him. As I’ve pointed out, I don’t believe even the Republicans are daft enough to nominate a man who has donated more money to Hillary Clinton and the racketeering enterprise also known the Clinton Foundation than most Democrats have combined.
I have, however, noted the candidate’s erratic nature on a few occasions. And in the very post that Krauthammer pretends to address, I intimated doubt that Trump knows much about either immigration law or Islam. But to sum up, I don’t care, even a little bit, about Donald Trump. If it’s possible, I care even less about his policymaking process.
I do, however, care very much about our immigration policy. I want it to enable us, within the bounds of the law, to exclude sharia-supremacist Muslims while admitting pro-Western Muslims who revere our constitutional culture of liberty. The former are the breeding pool for jihadism; the latter have been valuable in disrupting jihadist cells and could, if empowered, be valuable in marginalizing treacherous Islamist outfits like the Muslim Brotherhood.
Charles accuses me of “tarting up” Trump’s proposed “ban” (again, it’s actually a moratorium) in “constitutional and statutory livery.” Inexplicably, he fails to tell readers that I prefaced this “tarting” by stating, “I am against a categorical ban on Muslim immigration[.]” The point of my post was not to defend Trump’s proposal but to justify my own proposal, which is plainly stated in the first lines of my post: Reject a categorical ban but mandate that “Muslim immigrants should be examined about Islamicsupremacism and . . . adherents to that counter-constitutional ideology should be denied admission.”
This can be done legally, but it requires a grasp of the pertinent principles. Charles may be right that developing a taxonomy of Trumpian policy refinements would be a hilarious waste of time. But I have no interest in that. I am trying to persuade Americans about what we should do, which obliges me to outline what the law allows us to do.
I differentiated the “final form” of Trump’s proposal (which addresses aliens outside the United States) from the original (which addressed all Muslims, including American citizens and lawful permanent residents) because it is a salient constitutional distinction. The distinction hearkens back to the shameful aspect of FDR’s Japanese internment during World War II: the failure to distinguish Americans of Japanese descent, whose detention was unconstitutional and a blight on our history, fromJapanese aliens, whose detention was lawful (we can debate whether it was unwise). That is why I wrote that Trump’s original proposal “would be lawless, and recklessly so.”
In crafting a sound policy, we have to respect the rights of American Muslims. That means we must not use the imperative of formulating sensible immigration protocols as a pretext to address a different challenge: Islamic-supremacist activism by American Muslims. This is a significant problem and it is exacerbated by the influx of Islamists from abroad. But it is not, strictly speaking, an immigration problem.
Since Dr. K has seen fit to play amateur lawyer, let me reciprocate by playing amateur shrink. I suspect that his loathing of Trump’s bull-in-a-China-shop approach to politics is undermining his usually unparalleled discernment of the glass that actually does need breaking.
In New Jersey a few years back, a Muslim immigrant was serially raping his Muslim immigrant wife, who was in the process of divorcing him. When the wife sought a protective order in court, the husband countered that, under Islamic law, there is no such thing as marital rape — the wife was required to submit sexually on demand. Reprehensibly, the state judge accepted this explanation and refused to grant the protective order. Thankfully, he was reversed on appeal.
Under sharia, the rapist’s argument was valid. As the Islamic-law manual Reliance of the Traveller explains (in section m5, “Conjugal Rights”): “It is obligatory for a woman to let her husband have sex with her immediately when (a) he asks her (b) [they are] at home, and (c) she can physically endure it.”
The judge’s ruling in favor of the rapist was despicable because the laws of the United States and of New Jersey would not abide so sordid a principle. In our society, it is our laws that govern.
It must be acknowledged, though, that when it comes to sharia principles that are anathema to our law, the licensing of marital rape is hardly singular. That practice stems from the sharia concept that women are chattel — a lower caste than Muslim men with starkly inferior legal rights. Sharia also systematically discriminates against non-Muslims, Muslim apostates, and homosexuals. It rejects free speech, economic liberty, privacy, and due process. It denies people the right to govern themselves as they see fit. It promotes jihad — holy war — to establish, protect, and expand sharia-governed territory.
There is no point in elaborating further on these counter-constitutional principles. I’ve done that several times, and it cannot be credibly disputed that classical sharia holds these tenets. Nor can it be credibly disputed that millions of Islamist Muslims adhere to them — just as millions of non-Islamist Muslims do not.
There are two points, though, that cry out to be made.
First, there has to be a way of separating Islamists from non-Islamists and barring the former from our country. The Constitution, as Justice Robert Jackson sagely observed, is not a suicide pact.
Second, whatever one might think of Islam, the sharia principles mentioned above — involving matters of sexual battery, law, finance, combat, and politics — are not religious tenets. They are principles of a totalitarian political ideology. Despite their Islamic veneer, these principles cannot be analyzed as if they were just religious. If Karl Marx had written that Allah told him the workers must control the means of production, that would not have converted Communism into a sacrosanct corpus of religious belief.
Aliens have no right to immigrate to the United States, and the Constitution empowers our government to exclude classes of aliens. There is no constitutional impediment to banning Islamists — i.e., sharia supremacists, proponents of an anti-Constitutional governing framework — from entering, let alone settling in, our country.
Although the Constitution would not prohibit a religious test, what I am proposing homes in on political ideology, not religion. The authentically spiritual aspects of Islam deserve the safeguards our system affords to religious belief and practice. No sensible person wants to exclude Muslims over these aspects of their faith. To the contrary, I am talking about adherents of a hostile political ideology that nurtures violent jihadism, our most immediate national-security threat.
Our immigration law has always required aliens to provide assurances of fidelity to our constitutional principles. And in the past we have barred the admission of political ideologues hostile to our Constitution. It is obviously possible for our government to do this again — this time, to vet aliens for adherence to Islamic supremacism.
For such an immigration policy to work, however, it is essential to reaffirm the legal principle that I am advocating and that Charles is pooh-poohing: Namely, that the burden of proof is on the alien to demonstrate that he is fit to enter our society, and not on the government to show that the alien is unfit or lying about his fitness.
Charles Krauthammer’s brilliance justifies the great influence he has on policymakers and the public debate. I concede that when he rejects an idea out of hand, that typically has a powerful impact on my own thinking. Thus, I am not in a very good position to complain about the certainty that thoughtful people will dismiss my argument simply because Charles has dismissed it.
Still, I respectfully submit that he is wrong.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
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