Politics & Policy

No, the Constitution Does Not Bar ‘Religious Tests’ in Immigration Law

Properly vetting would-be immigrants’ religious beliefs is not only legal — it would be wise and prudent.

Of all the ignorant pronouncements in the 2016 presidential campaign, the dumbest may be that the Constitution forbids a “religious test” in the vetting of immigrants. Monotonously repeated in political speeches and talking-head blather, this claim is heedless of the Islamic doctrinal roots on which foreign-born Islamists and the jihadists they breed base their anti-Americanism. It is also dead wrong.

The clause said to be the source of this drivel is found in Article VI. As you’ll no doubt be shocked to learn, it has utterly nothing to do with immigration. The clause states, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (emphasis added). On its face, the provision is not only inapplicable to immigrants at large, let alone aliens who would like to be immigrants; it does not even apply to the general public. It is strictly limited to public officials — specifically to their fitness to serve in government positions.

This is equally clear from the clause’s context. Right before the “no religious Test” directive, Article VI decrees that elected and appointed officials “shall be bound by Oath or Affirmation, to support this Constitution[.]” An oath of office customarily requires the official to “solemnly swear” that he or she will support and defend the Constitution, “so help me God.” (See, e.g., the oath prescribed by federal law.) The Framers tacked on the “no religious test” clause to clarify that the mandate of a solemn oath before taking office did not mean fidelity to a particular religious creed was required. The same principle informs the First Amendment’s prohibition on the establishment of a state religion.

This is as it should be. The Constitution prescribes very few qualifications for even the highest offices because its purpose is to promote liberty, which vitally includes the freedom to elect whomever we choose, to vote our own private consciences. The principal check on public officials is the ballot box, not the law’s minimalist requirements.

As voters, we have the right to weigh a candidate’s religious beliefs as a significant part of the total package. We have done so from the Republic’s founding — and to this day, virtually all candidates take pains to wear their faith, however nominal, on their sleeves. When the loathsome Jeremiah Wright fleetingly became an issue in the 2008 campaign, Barack Obama did not thunder, “Under the Constitution, you must not inquire into my religious beliefs!” He threw the Rev under the bus. When it comes to choosing those who will represent us, we do not limit ourselves by intrusive laws, but we reserve the right to bring to bear any consideration, including religion, that we deem relevant.

What works in the narrow context of qualification for public office does not extend to other aspects of governance — in particular, security.

As we have previously observed, it is specious to claim that the Constitution forbids a religion test in matters of immigration. This is not merely because the Constitution has nothing to say on the matter (for, as we’ve also noted before, the original presumption was that immigration enforcement would be left to the states, with the federal government limited to prescribing the qualifications for citizenship). It is also because Congress has long expressly made inquiry into religion part of immigration law, specifically, in determining what aliens qualify as “refugees,” and whether aliens qualify for asylum.

It is specious to claim that the Constitution forbids a religion test in matters of immigration.

Unlike the process of scrutinizing and choosing public officials, the public does not get to vet and elect aliens who wish to enter our country. We rely on government officials to do that. It is thus entirely appropriate that intrusive regulations be imposed to limit their discretion. As abominable as the concept may be to transnational progressives, the sovereign in the United States is still “We the People.” And just as we have a right to consider the religious convictions of candidates for public office, so too do we have a right to require scrutiny of the beliefs of aliens who petition for entry into our country — a privilege we are under no obligation to confer. This includes beliefs the alien may regard as tenets of his faith — especially if such “faith tenets” involve matters of law, governance, economy, combat, and interpersonal relations that, in our culture’s separation of church and state, are not seen as spiritual.

The necessity of examining these principles is driven by Islam. The political class and other opinion elites have campaigned tirelessly, and in collusion with cagey Islamists, to idealize Islam, to portray it as part of the American fundament. Out of intellectual sloth and political correctness, we fail to discern that there is no single, definitive Islam — there is, rather, a wide spectrum of Muslim sects, some of which are deeply spiritual, others just totalitarian political ideologies fueled by religious fervor.

We further fail to acknowledge that Islam is alien to the West. President Obama likes to claim Islam has always been part of our history; he conveniently omits that it is a history fraught with hostility: Barbary corsairs were preying upon American merchant ships in the Mediterranean decades before the American Revolution. And while Western societies are based on tolerance and pluralism, modern Islam’s most influential iterations are intolerant conquest creeds that rigorously resist assimilation. Islamist leaders exhort Muslims to integrate into the West but oppose our culture and plant the flag of sharia. Before our eyes, the practice of this “voluntary apartheid” strategy is tearing Europe asunder.

Of course, the fact that the Constitution does not forbid a religious test for immigration does not mean the imposition of one would be prudent policy. We have Muslim friends and allies who embrace the West; who reject fundamentalist sharia-supremacism, resist Islamists, and help us fight jihadists. It would be costly to adopt a policy that slams our doors on them.

Neither, however, can we remain willfully blind to the fact — and it is a fact — that as Muslim populations grow in Western societies, sharia supremacism and the formation of insular communities where jihadism flourishes grow with them. At the moment, France is under jihadist siege, with parts of the country teetering on the brink of violent upheaval. The difference between France and the United States lies not in the kinds of Islam practiced but the size of the Muslim population. France is a country of 66 million, and thanks to its policies of open-borders and indifference to assimilation, Muslims are now 10 percent (perhaps more) of the total population. We, with a total population five times the size, have only half the number of Muslims — about 3 million, roughly 1 percent of our population.

We should resist a categorical ban on Muslim immigration.

As Senator Jeff Sessions (R., Ala.) points out, though, President Obama has orchestrated a dramatic increase in Muslim immigration to the U.S. In just the first five years of his administration, a staggering 680,000 green cards were issued to migrants from Muslim majority countries, a pace that continues — and will continue absent a change in policy. This, Senator Sessions hastens to add, does not include other would-be immigrants, such as the thousands of refugees Obama (and Hillary Clinton, should she succeed him) plan to admit from Syria and other jihadist hot spots.

Is it a coincidence that violent jihadist attacks have increased in our country as the Muslim population has climbed?

Promotion of assimilation and fidelity to the Constitution have been historical bedrocks of immigration policy. Indeed, before immigrants are naturalized as citizens, they must swear what is pointedly called an “oath of allegiance.” It calls on them to renounce any foreign sovereigns by whom they have been ruled, and to honor our Constitution — principles that are inimical to sharia supremacism. We should resist a categorical ban on Muslim immigration; but nothing in the Constitution prohibits the commonsense vetting of immigrants for beliefs that are antithetical to our principles, regardless of whether the immigrant perceives such beliefs as religious or political in nature.

We should welcome immigrants who embrace our principles, seek to assimilate into our society, and are value-added for — rather than a strain on — our economy. But if, in an era of jihadist violence, we cannot seriously vet immigrants to determine whether they fit this bill, it would be better to have a categorical ban. And if, based on an illiterate construction of the Constitution, the political class insists that its fictional “no religious test” rule forbids not only a categorical ban but the heightened scrutiny of Muslim aliens, it would be better to prohibit immigration across the board.

The United States government’s first obligation is to shield the American people from foreign threats, not to shield foreign threats and render the American people defenseless.


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