# 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:** 18\ **Page:** 5
**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, 9:11pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/81 "2016-12-23T21:11:31Z")
> [@HumbleThinker](#): > > From a strictly Constitutional perspective, though, I find it weird that Articles and Amendments of a country’s Constitution would apply to non-citizens. When I think of a founding document of a government, I think of it as applying to those who initiated (and in our case inherited) the social compact expressed in the Constitution. So in my mind, it seems like it would be implied that the constitution is only addressing the relationship between the US government and US citizens. If we pass laws or amendments that extend certain protections to non-citizens within the country (or conceivably outside the country), then sure I can see those specific protections applying then. But it seems weird to me to claim that some or all of them inherently apply to the government’s relationship to non-citizens within or without of the country. > > In principle, I’m generally all for it. But from a legal perspective I find it weird. The idea is that actions that on the surface affect only noncitizens also affect citizens, albeit less directly. If noncitizens are refused visas on ideological grounds, citizens are deprived of their freedom to associate with them, be exposed directly to their ideas, etc. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [December 23, 2016, 9:55pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/82 "2016-12-23T21:55:46Z")
My first thought is that it would fail a First Amendment test. Yes, people seeking to immigrate to America are not citizens (or residents) of the United States. But that’s what they’re seeking. By denying them entry to the United States, you’re denying them all of the protections of the Constitution. Obviously, we do that now. We don’t allow everyone who seeks admittance to America to have it. But our standards for who gets admitted are not based on a religious test. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 23, 2016, 10:11pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/83 "2016-12-23T22:11:46Z")
> [@John\_Mace](#): > > Which religion is being established? “Non-Muslim” is not a religion. I read “respecting” as “regarding,” rather than as “holding in high regard.” Does that clarify it? ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 23, 2016, 11:29pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/84 "2016-12-23T23:29:43Z")
Oh, I see what you’re saying, **John Mace**. But we don’t construe the First Amendment so narrowly as to mean merely that we can’t have an official federal church. And the free exercise clause is not construed only to apply to state churches. ---
**Author:** ![HumbleThinker](https://avatars.discourse-cdn.com/v4/letter/h/5daacb/32.png) [@HumbleThinker](https://boards.straightdope.com/u/HumbleThinker)\ **Post date:** [December 23, 2016, 11:31pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/85 "2016-12-23T23:31:55Z")
> [@Eva\_Luna](#): > > The idea is that actions that on the surface affect only noncitizens also affect citizens, albeit less directly. If noncitizens are refused visas on ideological grounds, citizens are deprived of their freedom to associate with them, be exposed directly to their ideas, etc. I guess I don’t see a right of association with non-citizens within the boundaries of a country where there is controlled immigration. The government cannot prevent you from associating with anyone, but I don’t see it as being obligated to assist anyone in associating with anyone by not having discriminatory immigration policies. This sounds more like an argument for completely open borders, which would be a different topic. Was that your intention? ---
**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 24, 2016, 12:05am UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/86 "2016-12-24T00:05:49Z")
> [@foolsguinea](#): > > I read “respecting” as “regarding,” rather than as “holding in high regard.” Does that clarify it? > [@foolsguinea](#): > > Oh, I see what you’re saying, **John Mace**. > > But we don’t construe the First Amendment so narrowly as to mean merely that we can’t have an official federal church. And the free exercise clause is not construed only to apply to state churches. We have the Lemon Test, and on the surface it would seem that a Muslim ban would fail that test. But is that test relevant wrt how the executive branch handles immigration issues? I’m not so sure. ---
**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 24, 2016, 12:12pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/87 "2016-12-24T12:12:34Z")
> [@HumbleThinker](#): > > I guess I don’t see a right of association with non-citizens within the boundaries of a country where there is controlled immigration. The government cannot prevent you from associating with anyone, but I don’t see it as being obligated to assist anyone in associating with anyone by not having discriminatory immigration policies. > > This sounds more like an argument for completely open borders, which would be a different topic. Was that your intention? On this occasion I wasn’t arguing for or against anything at all, merely pointing out that the issue had already been addressed in Federal court. But in the Ramadan case, I would argue that there was no legitimate security-related reason to revoke his visa anyway. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [December 24, 2016, 5:14pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/88 "2016-12-24T17:14:26Z")
> [@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. That is an exception to the fourth amendment based on the common law or inherent power of a government to control the borders of a country. Not because the constitution doesnt apply outside the country. For example, requiring a US citizen to be baptized before being allowed to enter from Mexico is obviously unconstitutional. The establishment clause prevents the government from endorsing or condemning a religion. The fact that the condemnation affects only non us citizens in foreign countries isnt relevant. It still is a clear violation of the establishment clause and is unconstitutional. The only challenge is finding a plantiff with standing to sue. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 24, 2016, 5:53pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/89 "2016-12-24T17:53:49Z")
> [@Human\_Action](#): > > To the best of my knowledge, the United States doesn’t have “illegal organizations”. That would violate the right to free assembly. Um, aren’t organizations that exist to break the law “illegal organizations”? Isn’t that what RICO is about? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [December 24, 2016, 6:02pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/90 "2016-12-24T18:02:19Z")
> [@Bricker](#): > > 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. Are you sure about the bolded part, **Bricker**? [CDFA - Plant Health - Pest Exclusion - California Border Protection Stations](https://www.cdfa.ca.gov/plant/pe/ExteriorExclusion/borders.html) ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 24, 2016, 9:49pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/91 "2016-12-24T21:49:10Z")
I’ve been inspected, in a manner rather like going through customs, crossing from Oregon into California. I think they wanted us to get rid of outside fruit, California’s agriculture being what it is. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [December 24, 2016, 10:05pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/92 "2016-12-24T22:05:18Z")
And the definition of national “border” seems pretty loose, given sime of the checkpoints I’ve been through in NM. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 24, 2016, 10:07pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/93 "2016-12-24T22:07:28Z")
The idea that countries, “must control their own borders or they aren’t countries,” has been brought up repeatedly in recent years, but seems unsupported and contrary to my understanding of history and geography. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [December 24, 2016, 11:36pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/94 "2016-12-24T23:36:06Z")
I’m not a lawyer (thank OG) and this argument probably wouldn’t pass muster with a strict textualist, but it seems to me that the spirit of the establishment clause is that the government doesn’t take sides when it comes to religion. It prevents any actions in favor of any particular religion (no law respecting an establishment of religion), and any actions actions against any particular religion (prohibiting the free exercise thereof). While banning entry to the United States for those members of a particular religion may not strictly speaking “prevent the free exercise” of the Islam by US citizens, it pretty clearly establishes that the United States views this religion more negatively than others. For those who disagree with this interpretation, would it be Consitutional if the US funded a media campaign that said that while it won’t actually outlaw Catholicism or prevent anyone from pursuing the Catholic faith it should be understood that the government in general sees Catholicism as a blight on mankind and wishes that people wouldn’t follow it. ---
**Author:** ![Kyrie\_Eleison](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kyrie_eleison/32/7682_2.png) [@Kyrie\_Eleison](https://boards.straightdope.com/u/Kyrie_Eleison)\ **Post date:** [December 25, 2016, 5:18pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/95 "2016-12-25T17:18:39Z")
> [@steronz](#): > > What about a constitutional challenge from US citizens who would be hurt by such an immigration policy? > [@Eva\_Luna](#): > > The idea is that actions that on the surface affect only noncitizens also affect citizens, albeit less directly. If noncitizens are refused visas on ideological grounds, citizens are deprived of their freedom to associate with them, be exposed directly to their ideas, etc. In this vein, what about the argument that by denying immigration to practitioners of a particular religion, the government would be adversely affecting the growth of that religion within the U.S., affecting citizen practitioners. If one get around the establishment clause by saying, “Hey, rather than establishing a particular religion, we’ll just discourage the growth the ones we don’t like,” that clause becomes pretty toothless. I imagine that if there were case law to this effect, someone would have already pointed it out, but it seems like a straightforward argument against the constitutionality of the proposed Muslim ban. It goes straight at the “effect prong” that **John Mace** brought out. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 21, 2017, 3:56pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/96 "2017-01-21T15:56:31Z")
> [@Buck\_Godot](#): > > For those who disagree with this interpretation, would it be Consitutional if the US funded a media campaign that said that while it won’t actually outlaw Catholicism or prevent anyone from pursuing the Catholic faith it should be understood that the government in general sees Catholicism as a blight on mankind and wishes that people wouldn’t follow it. I agree, but this isn’t applied across the board. For example, I think everyone would agree that a person has the First Amendment free speech right to say “Blacks are an inferior race and should not be afforded the same rights as white people.” I certainly disagree with that, but I think we would be in unanimous agreement that making such a statement is protected speech. So what happens when the government passes civil rights laws or funds a media campaign against racism? Isn’t the government then making it “understood” that the “government in general” disagrees with the speaker’s position and is thereby undercutting his free speech rights? We would likely all agree that the government is not doing any such thing, because the speaker is free to continue making the statement. Why would the matter be different because it is religion? If we look at the text, the government is not establishing a religion (non-Catholic is not a religion) nor is it prohibiting people from freely practicing Catholicism. Again, I don’t agree that the government should do this thing; I just don’t see any real foundation for the constitutional objection. ---
**Author:** ![Kimera757](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kimera757/32/3765_2.png) [@Kimera757](https://boards.straightdope.com/u/Kimera757)\ **Post date:** [January 21, 2017, 9:16pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/97 "2017-01-21T21:16:42Z")
> [@T.M](#): > > I am hearing the same arguments from America that I was hearing in Europe 2/3 years ago we can all see the problems that we are now having in Europe’ it is worth noting that mainland Europe has the same open borders policy that the states in America enjoy and that is our greatest problem and we face reclosing our borders within the near future. America has to consider taking actions that will restrict the import of terrorism, both the bombers and those who preach extreme Islam. I think Europe’s problem there isn’t the open borders, rather, it’s the ghettos. If you bring in all your immigrants from one place, it’s easy for them to segregate themselves and so you have minority children going to school only with other minority children (since all the kids in that neighborhood are members of that minority), possibly only learning from minority teachers, and then when they’re adults they don’t even marry other minority spouses who were raised in Europe, instead getting a prospective spouse flown to Europe in a deliberate attempt to stop integration… and, if the ethnic community is large and isolated enough, only work at companies owned by minorities with all your coworkers being minorities. Many parts of Europe brought in large numbers of Muslim immigrant laborers to rebuild after World War II… and _only_ Muslim immigrants. Add racism from the Europeans and self-segregation from the immigrants and you quickly had Muslim ghettos. Canada and the United States (and to a lesser extent the United Kingdom) bring in immigrants from all over the place, so it’s pretty rare to have these mono-ethnic ghettos. They also have the luxury of bringing in educated immigrants. I picture a grateful educated Iraqi couple wanting to bring their children to the US and integrate them as a positive, whereas someone who grew up in the ghetto and is angry at the US for a list of reasons they read on an ISIS blog as a negative. Stopping Muslim immigration would stop the former, not the latter. Canada on rare occasion has Muslim terrorist attacks. Usually they fail because the attackers couldn’t get out of Canada to terrorist school and then back, so instead they’re self-taught, possibly on some ISIS blog. These weren’t recent immigrants. While some were immigrants, they came to Canada as young children, and may even have perfectly-integrated siblings. I think the problem was integration, not immigration. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 22, 2017, 6:51pm UTC](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372/98 "2017-01-22T18:51:57Z")
> [@Kimera757](#): > > I think Europe’s problem there isn’t the open borders, rather, it’s the ghettos. If you bring in all your immigrants from one place, it’s easy for them to segregate themselves and so you have minority children going to school only with other minority children (since all the kids in that neighborhood are members of that minority), possibly only learning from minority teachers, and then when they’re adults they don’t even marry other minority spouses who were raised in Europe, instead getting a prospective spouse flown to Europe in a deliberate attempt to stop integration… and, if the ethnic community is large and isolated enough, only work at companies owned by minorities with all your coworkers being minorities. > > Many parts of Europe brought in large numbers of Muslim immigrant laborers to rebuild after World War II… and _only_ Muslim immigrants. Add racism from the Europeans and self-segregation from the immigrants and you quickly had Muslim ghettos. > > Canada and the United States (and to a lesser extent the United Kingdom) bring in immigrants from all over the place, so it’s pretty rare to have these mono-ethnic ghettos. They also have the luxury of bringing in educated immigrants. I picture a grateful educated Iraqi couple wanting to bring their children to the US and integrate them as a positive, whereas someone who grew up in the ghetto and is angry at the US for a list of reasons they read on an ISIS blog as a negative. Stopping Muslim immigration would stop the former, not the latter. > > Canada on rare occasion has Muslim terrorist attacks. Usually they fail because the attackers couldn’t get out of Canada to terrorist school and then back, so instead they’re self-taught, possibly on some ISIS blog. These weren’t recent immigrants. While some were immigrants, they came to Canada as young children, and may even have perfectly-integrated siblings. I think the problem was integration, not immigration. I agree with this and I think it illustrates Trump’s overall strategy. From my reading of his biography and other materials, he has conducted his entire business life on the strategy of making outrageous opening proposals and then when the “deal” is made, it is what he originally wanted, yet the other side feels that they have “won.” Trump: If I develop this area, the mayor will kiss my ass in public, like it, and then give me a 200 year tax abatement for doing so. Mayor: This is outrageous. I’ll never do such a thing! Trump: The mayor will do so. He may not like it, but he will do it. Mayor: I will never kiss his ass in public and 200 years is far too long. 50 is more reasonable. Trump: Okay, no public ass kissing, but a 100 year tax abatement. Mayor: 75 years? Trump: Deal. The thing is, Trump was hoping for a 75 year tax abatement all along, but started his negotiations with pomp and bluster, got a bunch of media attention, and the mayor gets to look like he beat Trump up to get what the _mayor_ wanted. Many of his other more outrageous proposals will likely result in similar “deals.” [Previous page](https://boards.straightdope.com/t/disgusting-and-un-american-but-is-a-muslim-ban-unconstitutional/775372.md?page=4)