Once again, Donald Trump has set off an explosion of public argument–this time over his call for a temporary ban on Muslims entering the country until, as he says, American authorities can figure out “what the hell is going on.” And once again, he has provoked those who want to criticize him into themselves saying things that are questionable. I am not saying that Trump intends to achieve this effect, but it does seem to happen almost every time.
Trump’s critics have plenty of leeway to say that his proposal is mistaken, bad, or even un-American. But some of them go further and claim it is unconstitutional. The problem is that the arguments for this claim are very weak.
I have seen people claim that Trump’s proposed ban would violate the No Religious Tests Clause of the Constitution. But this clause bans legal tests for holding public office. It has nothing to do with immigration. People entering the country are not by that act holding a public office. So this argument is pretty much a non-starter.
The other argument is that Trump’s proposed policy would violate the Establishment Clause. This argument is a little better, insofar as it is not immediately defeated by the obvious words of the constitutional provision in question. The First Amendment prohibits Congress from passing any law “respecting an establishment of religion.” There has been a lot of argument about what, exactly, this means. But I have never before now heard of any effort to apply the Clause to immigration policy. And I am pretty confident that a search of the debates over the Establishment Clause would show that nobody at the time of its framing and ratification was thinking that it had any bearing on immigration policy. Faced with this lack of any record suggesting a possible application of the Establishment Clause to immigration policy, any Court serious about doing its job properly–that is, serious about the limits of its own power and about the traditional presumption of constitutionality–would be in no position to strike down such a policy.
We now have a deep rooted tendency to think that everything that is objectionable must also be unconstitutional. But this is not the case, and seriousness about the Constitution–and all the good things that it secures–requires us to admit this and to resist the temptation to invoke the Constitution in cases where it does not really speak to the question.