Legal scholars don’t agree on whether Donald Trump’s demagogic proposal to
temporarily ban any of the world’s 1.6 billion Muslims from entering the United
States would be constitutional. That disagreement says more about the sorry
state of the constitutional law profession than it does about the quality of
Trump’s proposal.
Over the course of American history the U.S. courts, including the Supreme
Court, have “interpreted” the Constitution into a document that the
nation’s founders would hardly recognize. For example, when making his proposal
for banning Muslims, Trump spoke favorably of Franklin D. Roosevelt’s internment
of Japanese-Americans (and Japanese residents) during World War II. This episode
has been properly recognized by historians as one of the darkest in American
history, yet the Supreme Court at the time had no problem with this flagrant
violation of the Fifth Amendment’s due process clause that no person (the Constitution
does not even require a person to be a citizen to get this protection) shall
“be deprived of life, liberty, or property, without due process of law”
or the Sixth Amendment’s requirements of a jury trial.
The incarceration of Japanese-Americans has bearing on the current case of
Muslims, because it derives from the same irrational fear that gripped the nation
after the Japanese attacked Pearl Harbor — only now, the excuse doesn’t exist
that today’s threat seems as dire. Even then, in the actual war zone of Hawaii,
the restrictions on Japanese-Americans and Japanese residents were less harsh
than in the continental United States, thousands of miles from Hawaii. Furthermore,
two federal government studies, including one by the FDR White House, had shown
that Japanese-Americans and Japanese residents were loyal to the United States
and posed no security threat. FDR, always the consummate politician, reprehensibly
incarcerated more than 100,000 innocent people in prison camps merely to respond
to the war hysteria of the citizens of California, an important electoral state.
Many of these Japanese-Americans lost everything. The Supreme Court also upheld
bans on the entry of Chinese laborers in the late 1800s — another dark episode
in American history.