Imprimis

Who We Are As a People—The Syrian Refugee Question

Edward J. Erler
Co-author, The Founders on Citizenship and Immigration


Edward J. ErlerEdward J. Erler is professor emeritus of political science at California State University, San Bernardino. He earned his B.A. from San Jose State University and his M.A. and Ph.D. in government from the Claremont Graduate School. He has published numerous articles on constitutional topics in journals such as Interpretation, the Notre Dame Journal of Law, and the Harvard Journal of Law and Public Policy. He was a member of the California Advisory Commission on Civil Rights from 1988-2006 and served on the California Constitutional Revision Commission in 1996. He is the author of The American Polity and co‑author of The Founders on Citizenship and Immigration. This fall he is a visiting distinguished professor of politics at Hillsdale College.



A rational concern for our liberties as well as for national security weighs in against such reckless policies. Security experts warn that we don’t have enough homeland security agents to monitor suspected terrorists who are already in our country. If we increase the number of refugees from terrorist-supporting nations, greater security can only be provided by closer cooperation between the various security agencies and closer monitoring of the private lives of all Americans. The consequent loss of liberty will be extensive and will impact all areas of American life. This, we are told, will become the “new reality” or the “new normal,” and Americans will have to develop a “new mind-set” to deal with it. Europeans are well on their way to accepting terrorism as a daily part of their lives—surely Americans, we are told, can adapt as well. But Europeans are used to sacrificing liberties to the administrative state represented by the EU.
Will Americans acquiesce so easily?

The administrative state has not yet extinguished America’s love of liberty, although it surely has made significant inroads over the years as Americans have become inured to being bullied by bureaucrats of all stripes. The constant monitoring of citizens in the name of detecting terrorism will, if allowed, turn the nation into a security state where liberties will be easily and casually sacrificed to the constant threat of terrorism. Sacrificing liberty will be the price Americans pay to accommodate refugees—in other words, it is the sacrifice we must make on the altar of political correctness.

Remarkably, many politicians and pundits have argued that the First Amendment’s guarantee of free exercise of religion prohibits Congress and the president from banning the emigration of people to the U.S. based on religion. Thus they characterized the proposal to suspend the entry of Syrian refugees and others from terrorist-supporting nations as a violation of the Constitution. But we must surely wonder how those who are not American citizens or legal resident aliens—indeed, even those who have never been present in the country—can assert rights under the Constitution. By the terms of the Constitution, free exercise of religion is one of the privileges and immunities attached to citizenship; it can hardly be said to be possessed by all those who seek refuge in, or wish to emigrate to, the United States. As a sovereign nation, it is beyond dispute that the U.S. has plenary power to determine the conditions for immigration. Except in a borderless world, it can hardly be claimed that free exercise of religion is a right possessed by all persons inhabiting the globe or even those who are potentially asylum seekers.

One condition for claiming refugee status in the Refugee Act of 1980 is religious persecution. This necessarily means that any applicant for religious asylum would have to submit to questioning about his religious beliefs and (presumably) the sincerity of those beliefs. Also, it is not beyond reason that a sovereign nation would be allowed to inquire whether the religious beliefs of an asylum seeker are compatible with the American constitutional order. Should asylum be extended to the adherents of religions that do not recognize the free exercise rights of other religions? Should those religions whose adherents refuse to pledge or give evidence that they would support free exercise be ineligible for asylum? Religion—and inquiry into religious belief—has always been part of the asylum law, and there is nothing in the Constitution that bars such inquiry on national security grounds. Indeed, a quick glance at Article I of the Constitution reveals that Congress has plenary power to “establish a uniform Rule of Naturalization.” This has always been understood—by a necessary rule of inference—to mean that Congress also has plenary power to regulate immigration. Congress has wide latitude to choose the “necessary and proper” means to accomplish this end as long as it doesn’t violate some specific prohibition of the Constitution.

To sum up, only in the perfervid imaginations of the politically correct—those who reject the idea of borders—could the Syrian refugee controversy be confused with a constitutional controversy.