The Corner

Re: A Muslim Immigration Ban and the Constitution

In response to Re: Einstein, Derb, and Four Spinning Balls

Jim, I’ll have more to say momentarily about Donald Trump’s proposal. But if the test of constitutionality is not what the Constitution says but what five or more members of the current Supreme Court would rule, then we should stop pretending we have a Constitution.

As it happens, I agree with Mark Krikorian that a Muslim immigration ban would violate current statutory law. I also think that we should reform our law to reinvigorate fidelity to the Constitution and vet for adherence to sharia, which is an anti-constitutional system. Such a reform would welcome pro-American Muslims while barring Islamic supremacists.

But it is simply not true that the Constitution prohibits the government from excluding a class of aliens. I have no doubt that you are right to believe the current Supreme Court would fabricate such a prohibition. No doubt the justices would be cheered for doing so. But they would be fabricating a new Constitution, not interpreting the one we have – or used to have.

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