President-elect Donald Trump and his supporters seemingly need to be reminded that there is a 14th Amendment to the Constitution that has an Equal Protection Clause. Carl Higbie, a former spokesman for a major super PAC backing Donald Trump, advocated for a registry of Muslim immigrants and said the Korematsu v. US Supreme Court case supported the idea.
For those who don’t know about Japanese Internment or the Korematsu v. US decision, here is a little history. Following the attacks on Pearl Harbor by the Japanese Empire on December 7, 1941, President Roosevelt issued Executive Order 9066 on February 19, 1942. This executive order created internment camps in which to place Japanese-Americans and Italian-Americans because they might support their ancestral homeland during the war. The Korematsu decision upheld the right of the government to place Japanese-Americans in internment camps because of the compelling interest during a total war against fascism and Japanese imperialism.
However, in historic irony this case shows exactly why Trump’s possible Muslim registry is unconstitutional.
The Court for the first time applied what is called strict scrutiny to the issue of race. Under the 14th Amendment’s Equal Protection Clause, the Court has created different “suspect classes,” which are suspect, quasi-suspect, and non-suspect. They are related the level of discrimination a group experienced in American history. Race and religion are in the suspect class, which means any law applied to these groups faces the highest scrutiny by the Court, strict scrutiny. This is meant to protect minorities from legal discrimination while acknowledging that the government may have a non-discriminatory interest in any particular action.
Strict scrutiny has three parts: the government must have a compelling interest, the law/executive action must be narrowly tailored, and the law must be applied in the least restrictive means possible. Although Trump could probably craft a government action that was narrowly tailored and followed least restrictive means, the government would immediately fail on a compelling interest. As the Court has ruled in cases like New York Times Co. v. US and Hamdi v. Rumsfeld, just saying “national security” does not create sufficient justification to violate constitutional rights.
Islamist terrorism is a serious threat to global stability and national security, but the possibility of that threat on the American homeland does not create a compelling enough interest to violate the civil rights of Muslims. First, the threat of terrorism is diminutive compared to the threat of World War II. Only about 4,000 Americans have died in American history from terrorism, and about 3,000 of those were on 9-11. In comparison over sixty million people died in World War II, about 420,000 Americans. Second, not only are the number of Islamist terrorists minuscule compared to the overall Muslim-American population, but Muslims have since 9-11 actively worked with the police to help the government stop them. In fact, Muslim-Americans have brought more suspected terrorists and perpetrators to law enforcement attention than government agencies have.
The proposed Muslim registry is wholly unconstitutional and more importantly immoral. Muslims can be and are good American citizens, protected by our shared Constitution, and deserving of more respect than this possible policy offers.