Kali Worship: Why An Immigration Ban Based On Religious Identity Can Be Constitutional

I love to include supporting links and such with my posts. They provide readers with much needed support for my arguments and claims. So I thought I'd find out just which politicians and pundits had slammed as un-American and un-constitutional Donald Trump's proposed temporary ban on migration into the USA of Muslims.

WOW!

If the response had been scripted by the Jeb Bush (failing) campaign for president, it could not have more breadth and depth than, in fact, it has:

• Second Tier Republican Presidential candidate George Pataki: It's “so un-American. I think he’s driving the conversation over the edge. It is not the way Americans think. We want to protect ourselves, not discriminate. The idea that all Muslims who are coming to America pose a threat is absurd.”
• Governor Nikki Haley: It's "unconstitutional" and "un-American". "It's just an embarrassment to the Republican Party. It defies everything this country was based on and it's just wrong."
• Representative Dan Kildee: "Donald Trump's call to block all Muslims from entering the United States flies in the face of the values that make our country great. His comments are offensive and un-American."
• NH State Republican Party Chair Jennifer Horn: "There are some issues that transcend politics. While my position (as party chairwoman) is certainly political, I am an American first. There should never be a day in the United States of America when people are excluded based solely on their race or religion. It is un-Republican. It is unconstitutional. And it is un-American."
• Dick Cheney, former Vice President of the United States, 2001-2009: “I think this whole notion that somehow we can just say no more Muslims, just ban a whole religion, goes against everything we stand for and believe in. I mean, religious freedom has been a very important part of our history and where we came from. A lot of people, my ancestors got here, because they were Puritans.” 
• Second Tier Republican Presidential Candidate Sen. Lindsey Graham said, Trump should "go to hell."
• Ohio Governor and son of a postman, John Kasich, is seeking signers for an online petition to call out Trump. Kasich remarked, "America needs a leader that will unite us, not divide us." 
• New Jersey Gov. Chris Christie called Trump's comments "ridiculous" and "a sign" that the real estate mogul "lacks experience to lead."
• Homeland Security Secretary Jeh Johnson called Trump's idea, "irresponsible, probably illegal, unconstitutional and contrary to international law, un-American." 
• Republican Representative Barbara Comstock: “Well it’s unconstitutional, it’s un-American, and religion is something that’s internal, it’s nothing that you necessarily wear on your sleeve. It demonstrates his lack of understanding of you have to deal with the terrorist threat. It shows a lack of understanding of our basic constitutional systems, but also a lack of understanding of the terrorist threat and how they operate.”

Each of these pundits and politicians is angling for the spotlight. Some for their own presidential aspirations. Others to secure the ongoing support of their own base. Some, modeled after Charles Schumer, just cannot believe that any voice sounds better on any topic than their own. And to a man and to a woman, they claim Trump's proposal is "un American, unconstitutional."

None of them explain why it was pro American and completely constitutional when Jimmy Carter responded to Islamic Revolutionaries seizing US Embassy in Tehran and taking Americans hostage by barring entry to the US by Iranians and expelling Iranian students in the US on study visas.

Sure, we remember his malaise speech, his employing prepubescent Amy Carter as a nuclear deterrence consultant, his brother Billy and Billy's beer (and his cushy Libyan consultancy fees), and his failed Iranian hostage rescue efforts.

But how short the memory comes when it is time to ask, "How in Sam Heck can Trump think it is a good idea, a decent idea, an American idea, to suspend admission of individuals to the USA based on their religious affiliation."

Well, let's pull that question apart in more ways than one.

First, let's remove the skin of offense by pretending we are talking about some other religion than Islam.

Take Kali worship, for example:

Suppose that you're a Customs officer, at Kennedy International Airport.

"Good afternoon, passport please."

The Indian gentleman passes his passport over to you.

You examine the passport. It shows that Khudu Karmakar has a tourist visa and that his passport does not expire for two years.

"Mr. Karmakar, the purpose of your visit to the USA?"

Mr. Karmakar replies, "I have studied America for years. I have greatly admired the high esteem with which your Nation treasures personal liberties. I am here to study and participate in these liberties, to practice them myself, and then to carry word of them back to my home country, where, unfortunately, religious liberty, in particular, is not nearly so highly prized."

You consider his admiring words and his obvious appreciation of the Nation. Truthfully, it warms the cockles of your heart. Obviously, this admission will be an easy one.

"I think we can make this rather quick, Mr. Karmakar. Do you have anything to declare?"

Mr. Karmakar calmly replies, "no sir, only my personal belongings, including my notebooks, religious books, and sacerdotal objects."

Your perfunctory search concluded, you welcome Mr. Karmakar and send him on his way.

You didn't see the ceremonial knife, the incense, the razor, and the River Ganges holy water.

A week later, as you're enjoying a rare Saturday morning at home, you are surprised, well, really, shocked to read that an Indian national had been arrested for the ritual murder of a young American teen, Sue Doe.

Sue's body had been found in front of what, for all intents and purposes, appeared to be a makeshift shrine to the Indian goddess, Kali. Sue had evidently been drugged with rohypnol. Her body had been shaved of all hair. It showed evidence of being freshly washed, although the water did not appear to be tap drawn. And she had been killed in a manner highly suggestive of a ritual killing.

Now, at this point in the narrative, let's step outside your nightmare. You are fairly certain that what you did, your review of Karmakar's passport, your perfunctory inspection of his person and belongings, may have contributed to his admission to the USA, and the subsequent slaughter of Sue Doe.

You flip on the television. Damn Fox News, always being sensationalists, particularly the morning show, in this case, Fox and Friends Weekend. They are interviewing an Indian Studies professor, Doralee Schmirtz. Professor Schmirtz is way too chatty and catty for your tastes. But she says something that drills down into your brain.

"Although the police are continuing their investigation, the description of the scene reported in the news, along with items seized from Mr. Karmakar, have me convinced that this killing was a religiously inspired, ritual sacrifice to the Indian goddess, Kali."

The morning hosts prefer a much lighter fare, to be truthful. It looks and sounds like they'd like to find a way to discover that there was some joke in all of what Professor Schmirtz has just told them, particularly the uncomfortable looking Tucker Carlson.

He interjects. "Just a second, Professor, you make this sound like something out of Indiana Jones and the Temple of Doom!"

The professor, ready for the comparison replies, "fictional accounts like the Indiana Jones movie do lend a certain theatrical air to such things. The fact remains, however, that Kali worship, which is generally suppressed under Indian law and disapproved broadly among the Indian people, has a long and rich history there. That movie undoubtedly exagerated the basic story. The killing of poor Ms. Doe, however, reflects the much more common reality of how Kali devotees seek to acquire spiritual blessings and powers."

Off camera, Carlson's co-host is signalling to the floor director. She'd clearly like to move on.

The professor is not quite so aware, however, and she makes a further point that shakes you up.

"I have it on authority -- the person spoke to me on condition of anonymity -- that this deranged madman entered the USA just a week or so ago, and that, when he entered the country, he brought with him this knife that he used, incense, and a small container of water from India's most sacred river, the Ganges. Forensic scientists are currently testing materials at the crime scene to determine whether Ms. Doe's body was subjected to a ritual washing after being shaved. If it was, and if they can match the materials to the water of the River Ganges, then it seems an undeniable fact that Mr. Karmakar came to the USA intent on committing this horrible atrocity."

At this point, you're feeling fairly sick to your stomach. You're also contemplating a call to your union steward, and pursuit of legal representation in the investigation of your conduct, an investigation likely to follow, and, frankly, not likely to go well.

Let's step out of the narrative again.

The Republican debate is the scene. This debate features all the leading candidates, including Trump, Rubio, Cruz, Carson, Christie, and Bush.

Based on polling, the debate host, MSSYNBC has invited the second tier Republican candidates each to pose one question to a candidate of their choice.

Lindsey Graham: "My question is for Donald Trump. Mr. Trump, you've already shown how un-American you are by saying that we should reconsider the admission of Muslim immigrants to the USA. I have been told that, based on the insane acts of a madman in New York City, you are now calling for a hold on the admission of Kali worshipers to the USA. Have you ever even read the Bill of Rights? Do you have any respect at all for freedom of religion?"

Trump: "Senator Graham, I want to start by saying I appreciated each of the lovely thank you cards you've sent for my donations to your senatorial campaigns over the years. Obviously, I don't expect I'll get any more in the future, because I doubt I could find a good reason to support your continuation in the Senate."

"What you find impossible to believe, difficult to understand, and unmanageable to accomplish has been done by this nation before, to protect its people and its territorial integrity. Even Jimmy Carter excluded Iranians after the radical Muslims overthrew the government there and took Americans hostage. He even threw Iranian students out of the country!"

"The tragic case of Sue Doe should never have happened. It isn't hard to figure out what religions are the source of actual, real, threats of danger to the lives of others. And all I'm calling for here is to take others at their word when they say they mean us harm, and to use their own words and intentions as the basis of excluding them from something they DO NOT HAVE THE RIGHT TO IN ANY EVENT:  entry to our nation!"

The crowd rises to its feet, stomping, shouting, cheering. The noise forces MSSYNBC to cut away to a commercial. In pubs, bars, living rooms, and other locations around the country, Americans join in, "Yes, damn it, yes!"

The start of the Fourth Reich?

Only if it is Nazism to seek to preserve and protect your life, your family, your neighbor, your community from the murderous intentions of others.

With any luck, Mr. Customs Officer, the video loop recording of your station will have recorded over your haphazard disregard for the safety of Americans, and no one will be the wiser to your small part in the death of Sue Doe.

The question remains, why media elites, government officials, and the generally uninformed illiterati make folks who like Trump's call for a pause on immigration the 21st century equivalent of Hitler's Holocaust, rather than of Jimmy Carter's apparently sensible ban on travel to America by Iranians.

In case you do not recognize Mr. Karmakar, his story was told in a 2002 issue of Time Magazine, which related his grisly murder-sacrifice of a young girl as a form of ritual offering to Kali. You can read the story here.

Now, let's consider a second point, namely the supposed unconstitutionality of such a temporary suspension of admissions to the United States by individuals identified by their religious affiliation.

To fully grasp why it is patently wrong to charge that such a policy would be unconstitutional, you need to slip on your gayest apparel and simply think back to matters domestic and judicial over the summer, here in America.

As a result of the ongoing press for the legalization of marriage between persons of the same sex, we have all had some exposure -- at the most general level -- to something called the Religious Freedom Restoration Act. That statute created a right to sue the federal government for restricting religious freedoms -- as exemplified by religiously motivated actions.

RFRA, as the law is called, does not prohibit every action of the government that interferes with religious freedom. Government actions impacting religious freedom regularly survive scrutiny under the act. Some actions, courts find, are not substantially interfered with. Some prohibitions, courts find, are animated by a compelling government interest and accomplished by the most narrowly drawn practical policies.

As a general rule, most actions not specifically targeted by a religious characterizations can be subjected to the government's reasonable regulation. This reality has led to bakers of cakes being told that their religion does not justify discriminating against a same sex couple that requested that they bake a wedding cake for their gay wedding. This reality has led to similar impositions on the religious preferences and beliefs of florists, wedding planners, renters of reception facilities, etc.

The power of the State in all those cases has been directly dropped on religious liberty in the name of some larger (or perceived to be larger) principle. Many who today are condemning Trump, whose use of the Muslim identity as a screen has raised such consternation, oddly lacked a voice when bakers, florists, and owners of banquet halls got shat on by various government agencies.

Here's your "tough to swallow" truth of the day:

Protection of life, liberty, and property counts among the highest orders of government duty. It can, without doubt, be expressed as an interest that is compelling in nature. At that point, we are one third of the way to the ability of the government to successfully fend off a religious liberties challenge to such a policy.

Assuming that Trump's proposal took an appropriately narrow form, such as a ban on travel for a limited period, or subject to a level of screening not currently being used, or only for travelers from stated nations, I have no doubt that such a policy could be described as having been drawn to accomplish its objectives by the least restrictive means. Now we are two thirds of the way to a successful defense of such a policy.

The fact is, though, that the last third of the trip comes first, and it is that third of the trip that would DOOM a CHALLENGE by an excluded immigrant. For a government policy or practice to be successfully challenged, the claimant would have to show that the injury was to a religiously compelled or motivated practice.

The category of folks that can assert that their religion compels them to migrate into America, as a foreigner, is, I harbor the suspicion, quite small. America is not Mecca, nor Rome, nor is it split by the sacred River Ganges, I suppose the adherents of the Church of Jesus Christ of Latter Day Saints -- travelling to Salt Lake City for a celestial marriage ceremony -- might be among the very few that could successfully mount such a challenge.

And, truth is, even asserting such a religiously motivated action has been impacted by such a policy, that is when the two other questions -- compelling government interest and least restrictive means -- come into play.

No, such a temporary policy is not so easily relegated to the ash heaps of unconstitutionality, and that is a thankful thing -- whether we are talking about the real dangers of radicalized Islamic extremists infiltrating among refugees, or the imagined danger of a Kali worshiper coming to America to perform a human sacrifice.

A Satchel of Embarrassments: Stephen Field and Ping v. United States

Stephen Field

If you haven't noticed it by now, my list consists of Justices and opinions that have wandered from the Constitution's text, have expanded that text from the meaning of its actual words, or have imported entirely new meaning into text. Justice Stephen Field, a brilliant jurist, committed his constitutional foul ball in a case that recognized, for the first time, a power of the Congress to control immigration as part of the sovereignty of the United States federal government:

"The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one."

What Justice Field omitted from his opinion was an actual provision of the Constitution granting Congress such power to exclude foreigners.

Now, you may be thinking, but the Constitution grants to Congress power over immigration. Well, not exactly. What the Constitution says is quite precise. The Constitution grants to Congress power to "establish an uniform Rule of Naturalization." Oddly, though it might seem otherwise, that provision alone, no other, states the nature of the power delegated by the States to the Congress with respect to such matters. There is no "Immigration Clause" in the Constitution, no express delegation of the power to restrain or encourage immigration to the United States anywhere in the Constitution. All there is is the Naturalization Clause, and nothing more.

The Naturalization Clause, for what it's worth, actually has to do with the decision by the States to grant to Congress the exclusive power to define how individuals could become citizens of the United States. Yet, in this case, using the florid and imprecise style of language common to many of these bad decisions, Justice Field presumptively includes the power to exclude foreigners within the general powers of the Congress. And, yes, the prose is florid:

The control of local matters being left to local authorities, and national matters being intrusted to the government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determinations, so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers. 

Sadly omitted from Justice Field's decision is constitutional writ, constitutional text, or arguments from them. His argument, instead, is a kind of organic demand of the nation at large. It says, in essence, "only the federal government can address" this question because of the expanse of the Nation and the variations of its interests. 

Which Clause of the Constitution, you may ask yourself, is the one on which Fields' conclusions rest? The answer, unfortunately, can only be the Fields Clause. Because his decision repudiates the historic role played by the States in regulating migration into their borders by foreigners, and recognizes a sole power in the federal government to so regulate, I have added Justice Field's head to the Bag of Shame.

A Modern Fable

The Fable of the Lazy Security Guard 

A man stood outside the bank.  He had a gun, and a handwritten note demanding 100,000 dollars in small, nonsequentially number bills. An alert security guard stood inside the bank, behind a locked door. Having been alerted to the pending robbery attempt, he had locked the door.  He refused to open it.

The would-be robber's presence came to the attention of a bystander, who heard the robber banging on the bank door and demanding admittance to the bank.

"What's going on," the bystander asked.

"This darn security guard," replied the would-be robber, tucking his gun into his waistband to avoid detection, "he won't open the darn door and let me in.  I want to make a withdrawal!"

The bystander, thinking he correctly perceived the circumstance as being one in which the unbeknownst to him would-be robber was, he thought, a valued customer of the bank, became belligerant and directed his loudly projected voice at the door and the security guard behind it.  "Open the door, damn it all to hell, people have business in there, and you need to start doing your job!"

A crowd gathered.

They saw the bystander taking up the cause of the robber, and heard him chastening what now seemed to be, to their perception, the indolent, shiftless, lazy security guard for "failing to do his job."

Finally, seething with indignity, the bystander took a crowbar, prized open the door of the bank whereupon the would-be-robber became a robber in fact.  As it happened, he was able to clean out the vault at the bank, including all the safety deposit boxes.

The next week, a hue and cry arose as account holders began to receive notices that their payments were being reversed for NSF (insufficient funds).  A few were further dismayed when they discovered the loss of important personal valuables, even items they planned to bequeath to their children, now long gone from the vault.

The Moral of the Story:

Sometimes, doing "nothing" is doing your job.  Sometimes, bystanders who criticize others for doing "nothing" are blithely ignorant of duty and honor.  And sometimes, when you think that someone has a valid moral claim on the property of others, they do, in fact, not have such a claim.

Obama's Cookin Up Trouble in the Constitution Kitchen, Boehner is No Gordon Ramsay

For some, Kitchen Nightmares is a show they love to hate; for others, it is a show they hate to love. The premise is simple:  a restaurant is falling apart, chef Gordon Ramsay comes to the rescue after receiving a videotape from the owner or others describing the current decline (and sometimes the former glories) of an eatery.

Ramsay arrives on the scene, samples the fare (I am fairly sure that I have never seen him compliment a single dish served at this point in the drama), meets owners and staff, and then watches a prime service, whether it is the dinner service, or Sunday brunch or the like.  All hell breaks loose.  A chef becomes indignant, or an owner, or an owner-chef.

Rat droppings are found aplenty.  Molded food is found in the cold storage.  A commercial kitchen stove only works half the time.  And to top it all off, either the decor crawled out of the belly of a sick animal, or the atmosphere is a confusing mishmash of cutesy homeyness and uncomfortable seating.

In the end, Ramsay cajoles the angered chef or owner back inside, gains a tearful commitment to progress and change, and then rub-a-dub-dub, the place gets a scrub, a make over, and an updated menu!  By the hour's end, we have the impression that all can actually be well again.

So, look, if you don't like the Constitution, you can do the Kitchen Nightmare approach.  In constitutional terms, the Gordon Ramsay treatment for the US Constitution is to amend or repeal it. Doing so is as formulaic as Kitchen Nightmares.

That's the kind of thing pro-lifers have been hearing for years, ever since Harry Blackmun invented the right to dismember your own child while it is alive inside of you.  So here we are, living under a Constitution.  One that gives Congress NOT THE PRESIDENT plenary power to regulate migration into the USA.  So, if Obama wants to wrest that power from Congress all he has to do, and the only thing he has to do, is amend the Constitution.

Now as a "professor of constitutional law," I'm sure that was perfectly understandable for Professor Obama.  So, when Congress did NOT enact the DREAM Act -- a proposal that would have deferred deportation action for applicants brought to the US before their 16th birthday that had continued their education, gotten work, and avoided serious criminal law issues -- Obama could have said, "I'm tired of Congress not doing its job ... let's amend the Constitution so that I have the power to enact laws without Congress."

He didn't do so.

Instead, he issued an Executive Order on DACA, Deferred Action on Childhood Arrivals.  That Executive Order simply adopted key features of the DREAM Act as regulations. VOILA!  Just add Obama, no Congress necessary.  Now there isn't even any need for cooks in the kitchen.

When a madman enters your kitchen and begins cooking up mudpies and grass soup, you have a few options for addressing the situation.  And when a President enters a field belonging solely to Congress, it has a few options for addressing the situation.  For the trespassory Sham Chef, the solutions include calling the police to remove him, removing him yourself, and letting him run the kitchen.  For the trespassory president, there are the options of embarrassing him through the public exposure of oversight hearings, hamstringing him by the discipline of a restricted budget, or impeaching him.

So, when the Executive Chef of the House kitchen, John Boehner, tells America that tossing the Sham Chef out (impeaching him) is not on the table, but that suing the Sham Chef is a best option, you need to think about hiring a new Executive Chef.  After all, the Sham Chef is cooking away in the kitchen, creating havoc reminiscent of the scene In "Close Encounters of the Third Kind" where Richard Dreyfuss is pulling up hedges and dirt and throwing them into his kitchen to make his mud mountain rendition of Devil's Tower.

After Thursday evening, perhaps Boehner is giving thought to passing his jaunty Chef's cap along to another.

On Thursday evening, House leaders cancelled a vote on an emergency bill to fund activities responding to the border immigration crisis that has been much in the news of late.  CANCELLED.  Some headlines suggest that the House is in disarray.  The AP report explained that Representative Peter King, of New York, among others, laid the blame squarely at the feet of ... Senator Ted Cruz.  Strange, isn't it, that a man who doesn't have the privilege of the floor in the US House, a man who chairs no committee in the House, is made to be the conquistador of House Republicans.

So what was it that Senator Cruz did?

He invited House Republicans over for pizza.

While I'm certain the pizza was delicious (what pizza isn't?), I doubt that Senator Cruz doped the pizza and drugged his guests.  I'm thinking, and it is a guess, that what Senator Cruz did was meet with those Representatives who shared his concerns about executive overreach by Obama, about violation of Congress' sole prerogative regarding immigration.  In that meeting, he pitched to them the idea that no emergency border funding legislation should pass the House unless it expressly DEFUNDED Obama's lawless and unconstitutional Deferred Action for Childhood Arrivals activities.

Such a quid-pro-quo would make sense.  It applies budgetary discipline short of impeachment to a crass and clumsy overreach by Obama into an area of plenary congressional authority.  It gives the Administration funds to deal with the mess that the Administration has created by lax enforcement of borders and by enticing children to America with the Pied Piper promise of Deferred Action.

Apparently, Chef Boehner would have none of it, and without the DACA defunding provision, his sous chef Republican majority refused to cook up a dish that only the Democrats could ingest with pleasure.