As you surely cannot have failed to recently become aware, Khizr Khan set the political world ablaze with his speech at the Democratic convention, wherein he “humiliated” Orange Julius Caesar by whipping out his pocket Constitution. Khan is not a political operative, he’s clearly nothing more than an honest man trying to do the right thing, but this was nevertheless a stunt, and I am embarrassed to see so many people falling for it. Brandishing the Constitution is not only not an argument, it is precisely the type of non-argument that liberals so frequently accuse conservatives of using to avoid the actual substance of the issues. More than that, it is exactly the sort of contentless, TV-friendly grandstanding that is the stock in trade of Khan’s declared adversary.
Rather than celebrating this speech as a PR victory, Democrats ought to be deeply concerned about the direction that it portends for their party. Because of course it wasn’t just one speech; the entire convention was a grotesque rightward lurch, an attempt by the Democrats to claim the mantle of jingoistic military fetishism, consolidate the economic ruling class, and rebrand themselves as the true “party of Reagan.” I find it horrifying how few people find this horrifying. Let us not forget that Humayun Khan was killed in the Iraq War, which was and remains a great crime that cannot be forgiven, a storm of death and destruction that accomplished nothing, and a craven act of political dickswinging in which the Democrats were fully complicit. His sacrifice is something to be mourned and not celebrated, on both the personal and the political level. He died for no reason, and holding up his family’s suffering as a totem of political legitimacy is deeply sick. I mean, it’s not like Hillary Clinton has sacrificed anything either. And it’s a shit argument either way; if “sacrifice” is the main qualifier for office, then John McCain should have been President this whole time. If politics is to be good for anything, it ought to be aimed at preventing people from making these sorts of sacrifices for their country.
So there’s that, and there’s also the fact that the Constitution just has no applicability here whatsoever. The policy under discussion is the proposal to Ban All Muslims, so the implication is apparently supposed to be that this would be unconstitutional, but that’s obviously not true. We’re so far gone on this topic that I’m afraid the only option is to hit it grade-school style. The U.S. Constitution has two aspects. The main body of the document defines the branches of the federal government, including how they are to be staffed and which powers accord to which branch. Naturally, these sections have nothing to say about whether any particular policy is allowed or not; they only cover which branch has the power to enact which types of policies. For example, the power to declare war is granted to the Congress, but nothing is said about the conditions under which a particular declaration of war is permissible or not – any declaration of war authorized by the Congress is “constitutional.” Regarding immigration specifically, this is the only mention:
“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”
So yeah, not terribly relevant. And remember, this is the main part of the Constitution; everything else is an “amendment.” It was never intended to function as a human rights document. There originally wasn’t even going to be a “Bill of Rights”; it was thought that such a thing would be unnecessary or perhaps even counterproductive. That may have been a good instinct.
Turning then to the amendments, we again find nothing about immigration, or even about religious discrimination. Of course, Congress is prohibited from making any law respecting the establishment of religion, but this is not the same thing as saying that citizens can’t be treated differently based on their beliefs. (By the way, gender discrimination is also constitutional; that one failed.) Furthermore, the rights guaranteed by the amendments necessarily apply only to U.S. citizens, so looking here for guidance on immigration policy is a clear category error. Khan cites the phrase “equal protection of the laws” from the 14th Amendment, but this obviously does not apply to people who are not yet subject to the laws of the United States.
Since I suppose it must be said, restricting immigration based on anything other than direct substantiated danger related to a specific individual is bad and wrong. The point is precisely that making this argument is easy, and should not require recourse to the Constitution. Indeed, it is not at all clear what people expect to get by hitching their horses to the unsteady wagon of the Constitution. It is neither the first nor the last word on human rights, nor is it any kind of political-theoretical apotheosis. Like, the whole idea behind having “amendments” is that the Constitution is not to be considered perfect, that it was written in a specific place and time under a specific set of assumptions, and it can be changed at any time as needed. Remember how prohibition of alcohol was added to the Constitution and then repealed 14 years later? The presence of those amendments is probably the most valuable part of the entire document: they serve as a reminder that politics is never settled, and that what seems correct today can easily become a punchline tomorrow. The fact that the Constitution agrees with you says nothing about the validity of your argument; it is just as likely that you and the people who wrote the Constitution are equally depraved and/or stupid.
Constitution fetishism is correctly understood as the province of know-nothings whose only use for formal procedures is to deflect moral considerations. We ought to keep it that way. I understand the utility of argumentative heuristics; I am not insisting that everything be argued from the ground up. But I am insisting that we get better fetishes.