To play devil’s advocate (because I’m not supporting either side here) religion is protected by the 1st Amendment. The Civil Rights Act wasn’t around when the Chinese Exclusion Act was set in place and later upheld. The CRA wasn’t even around yet when the CEA was repealed in the 40s. So it seems there might be a significant difference if such an act targeted a religion which was protected by the constitution at the time.
So maybe it’s debatable how significant the distinction is, but there is one I think.
The CRA is legislation, which Congress can abrogate at its pleasure. The First Amendment protects free exercise, yes, but the 14th Amendment prohibits discrimination on the basis of race and yet it was not violated by the Chinese Exclusion Act.
14th Amendment doesn’t though. Section 1 says who is a citizen and Section 2 talks about voting rights but neither even mentions race (aside from a quick blurb about “Indians not taxed” not counting in population stats when determining how many representatives a state gets). Other sections are even less relevant. The Equal Protection clause was used later as the basis for civil rights acts (like Brown vs The Board of Education) but race isn’t specifically mentioned.
Maybe I’m putting too much emphasis on how specific each amendment is though. You have a point that free exercise of religion doesn’t necessarily equate to saying “come over HERE to exercise it” so you may be right that the 14th Amendment is more applicable in any case that involves discrimination, whether racial, religious, or otherwise.
That said, I think it’s interesting that the establishment clause singles out citizen’s “privileges and immunities” compared to due process in particular applying to “any person” and that equal protection under the law applies to “any person within its jurisdiction”. That seems relevant to the OP’s question for sure.
Because the Chinese Exclusion Act didn’t discriminate on the basis of race. It discriminated on the basis of national origin. A Chinese citizen of European ancestry would have been excluded based on the CEA, and a British citizen of Chinese ancestry would not be.
Was the CEA motivated by racism? Probably. Was it a bad law? Yes. But it wasn’t structured according to race (nor any other Constitutionally-protected status), and so it was constitutional.
Race isn’t protected in the Constitution any more than national origin unless I missed something. The 14th Amendment says that laws apply equally to everyone without mentioning race (or religion or much else specifically). Which is why people can claim that such things as sexual orientation and gender identity are protected constitutionally even though such claims are relatively modern.
Race is actually quite heavily protected in the Constitution because of the Reconstruction Amendments, and the 13th in particular. That’s not a general protection, though, but one specific to black people (and theoretically to anyone else who had been enslaved).
So, ok. If the constitution applies to Muslims physically present in the US, fine. Couldn’t Congress just
Deny citizenship to anyone physically present on a tourist visa or illegally staying. (actually, I think they already do this…)
Now, since they only have to consider for citizenship individuals outside the boundaries of the USA, they deny even the “citizen candidate visa” (green card or whatever it is called that lets people enter the USA on the track to becoming a citizen eventually) according to whatever discriminatory rules they like. It serves the interests of the USA to only allow in people with the education and/or wealth to contribute.
I don’t really understand either of your questions. The Constitution applies to basically everyone (inside or outside the US) at least as it pertains to their relationship with the US government. The distinction here is simply that the courts won’t second guess the political branches’ interpretation of it on immigration mattters.
But why? The First Amendment forbids establishment of religion or hindering the free exercise of religion. How does keeping people of a certain religion out of the country do that? They aren’t in this country yet, so the law of the land doesn’t yet apply to them. It’s hard to say they are being hindered from practicing their religion by the U.S. government when they aren’t in the U.S. yet and subject to U.S. laws or protections.
You could argue that the 13th amentment, which abolishes slavery, therefore implies the reverse, than all people have free will to go where they please, thus making banning mueslims uncosistutonal. I’d imagine the supreme court would not allow the ban because of the subject matter.
No that would be asinine. One of the few privileges or immunities preserved in the Slaughterhouse cases was the free travel within the US. There is no constitutional right to immigrate. Advancing this idea would be silly since foreign nationals outside the US aren’t covered by the Constitution.
Surely they have a relationship with the US government as soon as the apply to enter the US? They have made an application to the US government which the US government will determine according to US law. How is that not a relationship?
I take the point that it’s a relationship in which the courts have traditionally given the legislature and the executive a fairly free hand. But not a completely free hand. It may well be that the courts would decline to interfere with an immigration rule which was explicitly discriminatory on the basis of religion. But unless the US adopts such a rule, and someone challenges it, we won’t know for sure.
A simple application does not confer US constitutional protection. If it did, the constitution would be a blanket that would cover the world.
The fact that the CEA has already been discussed and shown to be relevant notwithstanding, we don’t need to go that far in history to find court rulings on point. Try HARISIADES v. SHAUGHNESSY, (1952)
A properly enacted immigration policy enforced by the executive is unlikely to ever be reviewed by the courts.
No, it wouldn’t. It would have no relevance at all to people who never applied to the US government for admission to the US (or anything else). And, even for those who did have some dealings with the US government, it would only be relevant to them in connection with their dealings with the US government, which presumably would be a very small part of their overall lives and affairs.
So that wouldn’t be “a blanket that would cover the world”. It would be a blanket that would cover the US government in all its actions, but I don’t see any objection of principal or practicality to that. (Some might think that, in general, that is exactly what the constitution of any state *ought *to be.)
