DOES DIVERSITY REALLY UNITE US? '... How does diversity strengthen us? Is it a force for unity and cohesiveness, or is it a source of division and contention? Does it promote the common good and the friendship that rests at the heart of citizenship, or does it promote racial and ethnic division and something resembling the tribalism that prevents most of the world from making constitutional government a success?'.

Author:Erler, Edward J.
Position:NATIONAL AFFAIRS
 
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PRES. DONALD TRUMP'S zero-tolerance policy for illegal border crossers has provoked a hysterical reaction from Democrats, establishment Republicans, the progressive-liberal media, Hollywood radicals, and the deep state. What particularly motivated the ire of these Trump-haters was the fact that the zero-tolerance policy would require the separation of parents and children at the border. The hysteria was, of course, completely insincere and fabricated, given that the policy of separating children and parents was nothing new--it had been a policy of the Obama and Bush Administrations as well.

Furthermore, where is the compassion for the thousands of American children who are separated from their parents every year as a result of arrests and convictions for nonviolent crimes? Many of those arrested are single mothers whose infants become wards of the government until their mothers complete their sentences. No hysteria or effusive compassion is elicited by these separations, confirming that the object of the hysteria surrounding illegal border crossers is to force open borders on the nation under the guise of compassion for children.

Pres. Trump's preferred solution for ending the influx of illegal immigrants and providing border security is a wall; it also is the preferred solution of the American people. Zero tolerance is an interim policy that--if enforced--will help deter illegal crossers. The hysteria provoked by zero tolerance could have been predicted, but its magnitude and sheer insanity are almost breathtaking. Some prominent constitutional scholars have gone so far as to argue that the government has no constitutional authority to control the border--and this, which seems almost beyond hysteria, from the elite intellectual class that should be most immune to hysteria.

In the meantime, a Federal District Court judge in Southern California has discovered a substantive due process right guaranteeing the right to "family integrity" lurking in the Due Process Clause of the Fifth Amendment and so ordered all children reunited with their illegal immigrant parents. Obviously, the judge expected the parents to be released from incarceration to join their children, but the Trump Administration would rather keep parents and children together in detention centers until legal proceedings determine their fate.

More than a century ago, the Supreme Court announced what was considered the settled sense of the matter when it remarked: "It is an accepted maxim of international law... and essential to self-preservation, to forbid the entrance of foreigners within [a sovereign nation's] dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe." This view was reaffirmed in the recent Supreme Court decision, handed down June 26, that upheld Trump's travel ban on foreign nationals from eight countries, six of which have majority Muslim populations.

Part of the complaint against the ban was that it violated the Establishment Clause of the First Amendment because Trump had displayed "animus" against Muslims in speeches before and after the 2016 election. The plaintiffs argued that the national security reasons for the ban merely were pretexts for Trump's thinly disguised contempt for the Muslim religion. Although the Court agreed that individual injury could be alleged under the Establishment Clause, the travel ban on its face was neutral with respect to religion, and it therefore was possible to decide the issue on statutory rather than constitutional grounds.

The dissenting opinion in this case would have invalidated the ban on constitutional grounds, based on the idea that the President's campaign statements and those of his advisers proved that animus against Islam was the real and pervasive motivation for the travel ban. Had this dissenting opinion prevailed, it would have created an anomaly in constitutional jurisprudence.

Conceding that the plain language of the travel ban was neutral and therefore constitutional, what rendered the travel ban unconstitutional was Trump's purported display of animus in his public speeches. If signed by any president other than Trump, there would therefore be no constitutional objections. In other words, in the minds of the dissenters, psychoanalysis of Trump's motives held greater constitutional...

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