# Disgusting and Un-American, But Is A "Muslim Ban" Unconstitutional? **URL:** \ **Category:** Great Debates\ **Created:** [December 22, 2016, 3:09pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372 "2016-12-22T15:09:52Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [December 22, 2016, 8:49pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/41 "2016-12-22T20:49:02Z")
> [@Bricker](#): > > The distinction here is immigration. > > The federal government cannot, for example, without a warrant or probable cause, search your bags as you cross from California to Nevada – and, indeed, neither can California or Nevada. But if you cross from Mexico into California, they can. > > So your question involves the treatment of persons already inside the country, but my issue happens outside or at the border. The government is entitled to do stuff there that they can’t do in the country. Instead of non-US citizens already in country looking for an apartment, suppose these were prospective immigrants from Morocco calling me on the phone and saying “We really like your apartment from the listing we saw online, we’re immigrating to the US next month, can we put in an application?”. And I say “Sure, wait, are you Muslim? In that case, absolutely not!”. I suppose that would be perfectly legal and defensible, even if the now-immigrants file a lawsuit against me the following month when they arrive? I’m trying to figure out if this is a “government can do this just because they’re the government” thing, or if it’s legal for anyone to discriminate against protected classes who are not yet (but may soon be) US residents? ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [December 22, 2016, 9:06pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/42 "2016-12-22T21:06:04Z")
I wonder at **Bricker** asking _us_ about a concept’s Constitutionality. Isn’t he the one who knows _exactly_ what’s constitutional and what is not? Is this a trick question, Counselor? What would Scalia rule? ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [December 23, 2016, 12:13am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/43 "2016-12-23T00:13:15Z")
> [@Bricker](#): > > I’m actually not so sure how un-American it is. The Chinese Exclusion Act ran from the 1880s to the 1940s. It was generally upheld by the courts as constitutional (and, interestingly enough, **opposed by Republicans** and supported by labor). Emphasis mine. That’s a little over-simplified. When the Chinese Exclusion Act was passed in 1882, 88 Republican members of the House supported it, with 32 opposed. Things were a bit different in the Senate, where only 9 Republicans supported it and 15 opposed it, while 14 did not vote. When the Geary Act passed ten years later, extending and adding more onerous requirements to the Act, more Republicans supported than opposed it in both the House and Senate (although, again with quite a few abstentions in each chamber). And when, in 1902, the Acts were made permanent, and were expanded to include Hawaii and the Philippines, the Republicans controlled both houses and Teddy Roosevelt (R) was President. More generally, Republicans controlled both houses of Congress, and slept in the White House, from 1889-1891, from 1897-1911, and again for the whole decade of the 1920s. It’s certainly true that Democrats were generally more rabidly anti-Chinese than Republicans during this time period, but if Republican opposition was strong enough, you’d think they could have done something about it before 1943. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [December 23, 2016, 12:24am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/44 "2016-12-23T00:24:11Z")
> [@Human\_Action](#): > > The Mormon Church renounced polygamy in 1890, though. Sort of. The [1890 Manifesto was written to appear to comply with the federal law, but was intentionally false. It was also stated advice rather than a formal rule](https://www.lds.org/scriptures/dc-testament/od/1?lang=eng) stated: > [@President of LDS Church](#): > > . . .And I now publicly declare that my advice to the Latter-day Saints is to refrain from contracting any marriage forbidden by the law of the land. The church continued to practice polygamy for well more than 10 years after, although to only a select few. There was an second manifesto in 1904 which finally stated > [@](#): > > And I hereby announce that all such marriages are prohibited, and if any officer or member of the Church shall assume to solemnize or enter into any such marriage, he will be deemed in transgression against the Church, and will be liable to be dealt with according to the rules and regulations thereof and excommunicated therefrom. There were a couple of Mormon apostles and a number of other leaders who rejected this and were subsequently sanctioned. It wasn’t until after 1910ish and up to somewhere in the late 1910s that the LDS church finally go a handle on the problem. It was certainly very well known in 1891 that the LDS church was still officially performing plural marriages while also proclaiming that they were not. There would still have been plural marriages performed in 1907, the the date of the second act, albeit against the wishes of the president. The actual history was quite messy but there would have been rumors of plural marriages and such rumors would have been known to non-LDS people. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 23, 2016, 12:30am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/45 "2016-12-23T00:30:40Z")
The LDS is such an American religion, new to the 1800s. Were there so many non-American Mormons trying to get into the US? As for the OP, one has to ask how one would go about determining if a given person was a Muslim or not, and would that pass Constitutional muster. Much more likely to ban folks from predominantly Muslim countries. ---
**Author:** ![ganthet](https://avatars.discourse-cdn.com/v4/letter/g/9de0a6/32.png) [@ganthet](https://boards.straightdope.com/u/ganthet)\ **Post date:** [December 23, 2016, 1:02am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/46 "2016-12-23T01:02:58Z")
> [@astorian](#): > > And Roof was promptly arrested and sentenced to death. And no white people are mourning for him or calling him a martyr. Roof has not been sentenced yet. That’s in January. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [December 23, 2016, 1:23am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/47 "2016-12-23T01:23:28Z")
I would think the textualist view would be that it cannot be done. As far as I know, there is nothing in the text that limits the First Amendment to those within the borders of the United States. It just tells the U.S. government what it can’t do. If we presume the immigration laws ultimately are established by Congress (even if they delegate their authority), then I would propose that any laws attempting to restrict immigration by respect to religion would be unconstitutional, as it effectively requires Congress to pass a law restricting religion. That’s not to say that the U.S. has any obligation to protect anyone outside its walls from religious discrimination or persecution. Just that, if it chooses to act, it must work within the restrictions established by the Constitution. If I am mistaken about there not being some text that restricts the Constitution, I would love to know what it is. the only thing I can think of is the “we the people” line, but that only says who is establishing the laws, not who those laws effect. Plus, ultimately, the First Amendment is affecting Americans–the Congresspeople who can’t pass certain laws. I think that covers a textualist. I think any of the rest of the judges will have allowed for the fact that ideas on what is acceptable have changed, and rule accordingly. I think restricting specific countries might be more viable, but it would require proving that there is an increased risk so high that even just having a better vetting process is not enough. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 23, 2016, 1:33am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/48 "2016-12-23T01:33:35Z")
> [@John\_Mace](#): > > The LDS is such an American religion, new to the 1800s. Were there so many non-American Mormons trying to get into the US? Much to my surprise (for the reason you just set forth), the answer seems to be “yes.” I don’t know the numbers (and can’t be bothered to look) but Mormon migration to the United States was a real “issue” in the late 1880s. The “Perpetual Emigrating Fund Company” (which was dis-incorporated by the Edmunds-Tucker Act along with the church itself) was set up to fund migration of Mormons to Utah. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 23, 2016, 2:08am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/49 "2016-12-23T02:08:00Z")
> [@Bridget\_Burke](#): > > I wonder at **Bricker** asking _us_ about a concept’s Constitutionality. Isn’t he the one who knows _exactly_ what’s constitutional and what is not? > > Is this a trick question, Counselor? > > What would Scalia rule? Not my area of expertise. And, frankly, I’m hoping that someone has a novel read on it, because my inexpert conclusion is that it WOULD be constitutional. And I expect Scalia would rule thusly. But that’s his job. It’s the job of Congress to make good law; it;s the job of judges to interpret the law correctly. If the law is bad policy, it’s not the job of judges to undo it. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [December 23, 2016, 2:12am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/50 "2016-12-23T02:12:05Z")
> [@Bricker](#): > > Not my area of expertise. And, frankly, I’m hoping that someone has a novel read on it, because my inexpert conclusion is that it WOULD be constitutional. > > And I expect Scalia would rule thusly. > > But that’s his job. It’s the job of Congress to make good law; it;s the job of judges to interpret the law correctly. If the law is bad policy, it’s not the job of judges to undo it. This brings up an interesting point – how far do you think this duty goes? I would assume that there is a cutoff somewhere, even for you – say, if a law/the Constitution allowed the destruction of Earth and every human being, you’d hope a judge would violate their “duty” towards interpreting this particular law “correctly”. But that’s a ridiculous sci-fi scenario… is there any real world scenario (even an extremely unlikely one) in which you would hope that justices would find a way to rule _against_ the literal interpretation of law/the Constitution? Suppose something allowed the rape of children, or the genocide of some minority, or something else totally abominable? ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [December 23, 2016, 3:13am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/51 "2016-12-23T03:13:50Z")
> [@Bricker](#): > > I don’t question for an instant that the ban would be violative of the First Amendment if it were applied to people inside the United States, even if they were not citizens or lawful permanent residents. > > I’m suggesting that the Constitutional guarantee does not apply to immigration policy. Well, on occasion the argument has been used that [U.S. citizens and residents and U.S. organizations are being deprived of First Amendment rights if certain noncitizens are denied visas/entry to the United States on ideological grounds.](https://www.aclu.org/news/state-department-ends-unconstitutional-exclusion-blacklisted-scholars-us) And in the case of Tariq Ramadan, you will note, the argument worked. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 23, 2016, 3:38am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/52 "2016-12-23T03:38:20Z")
> [@Eva\_Luna](#): > > Well, on occasion the argument has been used that [U.S. citizens and residents and U.S. organizations are being deprived of First Amendment rights if certain noncitizens are denied visas/entry to the United States on ideological grounds.](https://www.aclu.org/news/state-department-ends-unconstitutional-exclusion-blacklisted-scholars-us) And in the case of Tariq Ramadan, you will note, the argument worked. That was not a court case, but a decision by the SecState. I did a search of “first” and “amendment” of your cite, and got 0 hits. Can you explain what you mean by that (emphasis added)? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 23, 2016, 3:43am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/53 "2016-12-23T03:43:36Z")
> [@iiandyiiii](#): > > This brings up an interesting point – how far do you think this duty goes? I would assume that there is a cutoff somewhere, even for you – say, if a law/the Constitution allowed the destruction of Earth and every human being, you’d hope a judge would violate their “duty” towards interpreting this particular law “correctly”. But that’s a ridiculous sci-fi scenario… is there any real world scenario (even an extremely unlikely one) in which you would hope that justices would find a way to rule _against_ the literal interpretation of law/the Constitution? Suppose something allowed the rape of children, or the genocide of some minority, or something else totally abominable? Implicit in the concept of a civil society is that there certain, well, civil norms. If a society were the type as to legalize child rape, why would you think that society would give a damn what 9 old farts in black robes had to say about it? I would expect it would be the duty of such a judge to resign, as he could not in good conscious uphold the law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 23, 2016, 4:11am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/54 "2016-12-23T04:11:57Z")
> [@Eva\_Luna](#): > > Well, on occasion the argument has been used that [U.S. citizens and residents and U.S. organizations are being deprived of First Amendment rights if certain noncitizens are denied visas/entry to the United States on ideological grounds.](https://www.aclu.org/news/state-department-ends-unconstitutional-exclusion-blacklisted-scholars-us) And in the case of Tariq Ramadan, you will note, the argument worked. I’m not at all in agreement with that summary. What appears to have worked is the election of Barack Obama and the appointment of Hillary Clinton; there was no case law set for the proposition you describe. In other words, if President Trump and Secretary Tillerson issue a new order, we’re back at square one. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 23, 2016, 4:15am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/55 "2016-12-23T04:15:40Z")
> [@iiandyiiii](#): > > This brings up an interesting point – how far do you think this duty goes? I would assume that there is a cutoff somewhere, even for you – say, if a law/the Constitution allowed the destruction of Earth and every human being, you’d hope a judge would violate their “duty” towards interpreting this particular law “correctly”. But that’s a ridiculous sci-fi scenario… is there any real world scenario (even an extremely unlikely one) in which you would hope that justices would find a way to rule _against_ the literal interpretation of law/the Constitution? Suppose something allowed the rape of children, or the genocide of some minority, or something else totally abominable? Not that I can think of, no. The more outrageous the scenarios get, the less likely it becomes that a court opinion will sway the issue. In other words, if there is such wide-spread enthusiasm for the rape of children, it’s unlikely that these rapists will be stopped by the Court. ---
**Author:** ![barath\_s](https://avatars.discourse-cdn.com/v4/letter/b/90ced4/32.png) [@barath\_s](https://boards.straightdope.com/u/barath_s)\ **Post date:** [December 23, 2016, 4:19am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/56 "2016-12-23T04:19:45Z")
Let me put forward this hypothetical in case of such a law : An American catholic could have the pope visit. Arguably aiding the dissemination of the catholic religion in the US Would an American Shi’ite have a case that the systematic denial of a visa to religious leaders of his persuasion impacts his right to practice and disseminate his religion ? ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [December 23, 2016, 4:49am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/57 "2016-12-23T04:49:39Z")
If anyone is interested, [here](http://michiganlawreview.org/plenary-power-is-dead/) is a long article tracing the history of congressional authority over immigration law. It recounts the traditional doctrine that such authority is all but unlimited and explores some recent challenges to that general idea. > [@iiandyiiii](#): > > I would assume that there is a cutoff somewhere, even for you – say, if a law/the Constitution allowed the destruction of Earth and every human being, you’d hope a judge would violate their “duty” towards interpreting this particular law “correctly”. Maybe I’m misunderstanding you, but it seems to me that the constitution certainly permits the government to engage in an all-out nuclear war, for instance. I don’t see any basis for a court to rule otherwise. ---
**Author:** ![Nava](https://avatars.discourse-cdn.com/v4/letter/n/da6949/32.png) [@Nava](https://boards.straightdope.com/u/Nava)\ **Post date:** [December 23, 2016, 5:03am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/58 "2016-12-23T05:03:49Z")
> [@RickJay](#): > > Well, parts do and parts don’t. A visitor to the United States has the rights to a speedy and public trial, for instance, to not be forced to testify against themselves, etc. But they do not have, for instance, the right to vote. Not having the right to vote is an application of the Constitution; the right to vote is granted, not to every physical person who happens to be on US soil, but to US citizens in a certain age bracket and regardless of where they happen to be. So, the part about the right to vote is being applied to non-American-citizens on US soil just fine. It’s being applied exactly as completely as it is applied to American citizens who happen to be outside the age bracket. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [December 23, 2016, 5:17am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/59 "2016-12-23T05:17:21Z")
> [@Bricker](#): > > Not my area of expertise. And, frankly, I’m hoping that someone has a novel read on it, because my inexpert conclusion is that it WOULD be constitutional. If Congress passed a law that straight up said, “In order to maintain the character of the United States as a Christian nation, the immigration of Muslims etc. etc.” that would (or, at least, should) be struck down under the first, right? I recognize that it’s highly unlikely that the law would actually say that, but to what extent can/should the supreme court justices infer that intent? ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [December 23, 2016, 6:29am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/60 "2016-12-23T06:29:09Z")
> [@Falchion](#): > > Much to my surprise (for the reason you just set forth), the answer seems to be “yes.” I don’t know the numbers (and can’t be bothered to look) but Mormon migration to the United States was a real “issue” in the late 1880s. The “Perpetual Emigrating Fund Company” (which was dis-incorporated by the Edmunds-Tucker Act along with the church itself) was set up to fund migration of Mormons to Utah. As you said, there were a significant number of Mormon immigrants, primarily from the British isles and Scandinavia. I have ancestors who from both areas who joined the church and then moved to Utah. A lot of the immigrants were sold much more on “free land” than on polygamy or any other tenant of the church. [Previous page](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372.md?page=2) [Next page](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372.md?page=4)