Andrew C. McCarthy:
The Fourth Circuit Court of Appeal’s ruling against President Trump’s so-called travel ban empowers both radical Islam and judicial imperialism. The combination portends lasting damage to the United States.
To rehash, the executive order (EO) proclaimed temporary restrictions (the main one, for 90 days) on travel to the United States by the nationals of six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen. Those countries, along with Iraq (cited in Trump’s original executive order, but not the revised EO at issue), had previously been singled out by Congress and President Obama — not because they are Muslim-majority countries, but because a) the presence or promotion of terrorism in their territories makes their nationals suspect and b) their anti-Americanism and/or dysfunctional governments render it impossible to conduct background checks on visa applicants.
This Fourth Circuit’s en banc review of prior invalidations of the EO by “progressive” activists masquerading as jurists produced 205 pages of opinions. The outcome was about as uncertain as Secretariat at Belmont, with ten of the tribunal’s 13 judges joining Chief Judge Roger Gregory’s majority ruling to one degree or another.
Three judges filed compelling dissents that will prove quite useful when, as Trump promises, the case proceeds to the Supreme Court. The continuation of the litigation is an unfortunate outcome, even if conservatives and other rule-of-law types, buoyed by Justice Neil Gorsuch’s appointment, may be right that the EO has a better shot in the High Court.
That’s because the EO doesn’t matter. You may not have noticed, but sharia supremacism has already won, regardless of what the Supreme Court does.
See, the EO was never an end in and of itself. It is a means — a fatally flawed one — to a vital end. That end is a vetting system that enables our security services to distinguish pro-Western Muslims from sharia supremacists. That’s the goal. The EO was conceived as a temporary pause while the vetting system took shape.
From a security perspective, though, the EO was utterly ineffective: applicable to a negligible slice of the global anti-American threat. More significantly, as a strategy, starting with the EO rather than getting to vetting has been a catastrophe.
As we have previously observed, in order to install the vetting system we need, the challenge of Islam must be confronted head-on and without apology. That is unavoidable. You can’t flinch. It is a certainty that the Democrat-media complex — of which Islamist organizations are members in good standing — is going to smear you as a racist “Islamophobe.” (Yes, this is another race-obsessed “progressive” narrative, so Islam gets to be the “race,” so that defenders of the Constitution and Western culture can be cast as “the oppressor.”) You have to be content with knowing that you are not a racist, with knowing that you are defending religious liberty, including the religious liberty of pro-Western Muslims.
There is a single battle that must be won. American culture must be convinced that Islam, while it has plenty of diversity, has a mainstream strain — sharia supremacism — that is not a religion but a totalitarian political ideology hiding under a religious veneer.
Intellectually, this should not be a difficult thing to do. Sharia supremacism does not accept the separation of religion from political life (which is why it is lethally hostile to reform Muslims). It requires the imposition of classical, ancient sharia law, which crushes individual liberty (particularly freedom — of conscience, of speech, and in economic affairs). It systematically discriminates against women and non-Muslims. It is cruel in its enforcement. It endorses violent jihad to settle political disputes (since such disputes boil down to whether sharia is being undermined — a capital offense).
What I have just outlined is not a “theory.” Quite apart from the fact that sharia supremacism is the subject of numerous books, studies, public-opinion polls, and courtroom prosecutions, one need only look at life in Saudi Arabia and Iran, societies in which the regime imposes sharia. As I mentioned a few days ago, one need only look at the State Department’s warnings to Americans who travel to Saudi Arabia.
Nevertheless, what should be easy to establish intellectually is difficult as a practical matter. Sharia supremacists and their progressive allies maintain that Islam may not be parsed into different strains. For legal purposes, they insist it is a monolith that is protected by religious-liberty principles — notwithstanding that a) progressives are generally hostile to religious liberty and b) sharia supremacists themselves would destroy religious liberty. Perversely, then, they argue that the First Amendment is offended by national-security measures against anti-American radicals who would, given the chance, deep-six the First Amendment in favor of sharia.
It is essential to win this debate over the political nature of sharia supremacism. Our law has a long constitutional tradition, rooted in the natural and international law of self-defense, of excluding aliens on the basis of radical, anti-American political ideology. Thus, if sharia supremacism is deemed a political ideology, we can keep out alien adherents of a cause that both inspires the terrorists of today and, wherever it is allowed to take root, produces the terrorists of tomorrow.
Yet, we also have a strong commitment to religious freedom. If at the end of the debate — assuming we ever have the debate — our culture’s conclusion is that sharia supremacism equals Islam, equals religion, equals immunity from governmental protective measures, then the Constitution really will have become a suicide pact. We will have decided that anti-constitutional sharia radicals are just as welcome as any other Muslim.
