Nobody seems to know precisely what Donald Trump has said or wants in the way of compulsory registration of “Muslims” in the United States. This is what he said last year. This is where he is on the issue now. (Fixed a link that previously went to the wrong place. For an update, see below.*)
It’s all mud, and it’s all insane. It doesn’t much matter whether he intends to put all Muslim refugees on the list, or all committed Muslims on the list, or or all nominal or committed Muslims on the list, or everyone on the list who could be Muslim, or everyone who looks like a Muslim, or everyone who looks like he could be a Muslim, or everyone who was born a Muslim, or was born and raised a Muslim, or looks like he could have been born a Muslim, or is currently a declared atheist but could legitimately be suspected of undue nostalgia for having once been a Muslim…etc. The list can be extended ad nauseum. The problem is, it might well be extended ad nauseum. Trump’s explanations are incoherent and meaningless enough to require registration by anyone somehow problematically “linked” to Islam (to use a favorite piece of jargon), no matter what they actually believe. In other words, what we have on our hands is an incipient witch hunt.
No legitimate law enforcement purpose is served by the demand to disclose one’s religious belief, absent a prior showing of either reasonable suspicion or probable cause in cases where belief in Islam is relevant to the elements of the suspected crime. No procedure short of torture or the threat of punishment can produce an accurate answer in cases where the person questioned decides to dissimulate, which could in principle be most cases. The policy has to be implemented by force–and it’s worth remembering that, as Locke puts it, political power means the power to inflict death (Second Treatise, sect. 3). Already in this country we’ve seen notable cases of people being killed for their failure to comply fully with police orders (this is an understatement). It is not implausible to think that if Trump’s policy is somehow given the force of law, people could be shot dead for refusing to comply with it. And incarceration and fines are a given in cases of a failure to comply. Speaking of fines, I should add that in 2011, I predicted that the hijab law in France would be implemented by armed force (pp. 179-181), and that’s not only what happened, but understates what was to happen.
So far, no one in favor of the proposal has defined the relevant criteria for someone’s being a Muslim. On orthodox criteria–belief in God plus belief in the prophecy of Muhammad–the declaration has little or no political significance. Whatever you think is logically entailed by a commitment to belief in God plus the prophecy of Muhammad, as an actual matter, the vast majority of Americans Muslims do not think it requires illegality or violence. The self-proclaimed “experts” who are asserting otherwise have no fucking idea what they’re talking about, and lack even a minimal interest in respecting the rights of Muslims in this country. The credibility being granted such claims is on par with the credibility so easily granted to the 9/11 celebration rumors. The current proposal operates at the same hysterical level as those rumors, and cashes in on the same underlying deception–that Muslims are bloodthirsty savages theologically commanded to subvert the U.S. government, that we the American people are at war with them, and that we ought to treat them, en masse, as a hostile enemy in our midst, and do with them as we please. (And then, of course, there’s stupid shit like this and this.)
I’m not a constitutional lawyer (or a lawyer), but I think it’s clear that as applied to American citizens, the proposal is unconstitutional on its face: it violates the First, Fourth, Fifth, and Ninth Amendments to the U.S. Constitution. First: It would be a law (or policy or regulation) directly concerning an establishment of religion. Fourth: It illegitimately treats religious affiliation as a predicate for search and/or seizure. Fifth: It violates the right against self-incrimination (in a context where “being a Muslim” is being regarded as incriminatory). Ninth: Unenumerated rights are reserved to the people, and if there is one right we absolutely have, it is the right to keep our counsel about metaphysical beliefs the sheer possession of which is never a crime. Whatever you think about its truth or falsity, rationality or irrationality, it simply is not a crime to believe in God and the prophecy of Muhammad (or the inerrancy of the Qur’an, or any of the rest of Islam, etc.). If so, you cannot legitimately be compelled by anyone to answer for having the relevant beliefs. Notice that the rights implicit in the Ninth Amendment are held not just held by citizens, but by the people.
I wrote the following post on Facebook. Maybe it sounds over-heated to some, but I didn’t write it in haste or heat. I wrote it with all due deliberation. I posted it because I mean it. And if you think I’m jumping the gun, so to speak, because we haven’t yet gotten a clear declaration that he’s coming after the likes of me, my response is: don’t hold your breath for one of those. (He pulled the same stunt on his so-called Muslim ban.) Because when the time it comes, it’ll be too late. The time to oppose this, on the maximalist interpretation of what he could mean, is now. I’ll cut Trump and his supporters some interpretive charity when they manage to be clear enough to have earned it. And not a minute before.
A bit of background: I have a Muslim name and had a Muslim upbringing. The first thing you see when you walk into my office is a plaque with a brass inscription of a verse from the Qur’an (Ayat ul Qursi). At face value, I seem as Muslim as the next Muslim. And who knows what’s going on in my head? Even the people who know me best don’t know that.
Suppose the government wants to know whether I really am a “Muslim,” and if I am, wants me to register on its Official List of Muslims. Suppose that I absolutely refuse to answer the first question, and therefore absolutely refuse to register for the list. Now what?
“Oh, but let’s be positive and heal, and work with our president elect in the name of national unity.”
I have a better idea. Why don’t those of you who voted for Trump take some responsibility for your vote? And why don’t those of you who don’t have to register but want to engage in accommodationist baby talk do the same? If you want me on a list, say so. If you don’t, tell your Fuhrer to dial it back. But if you’re going to put me on a list, don’t get “uncomfortable” if I get confrontational with you in person when I see you. Now is not the time for me to give much of a shit about your comfort. Now is the time for me to show you that I’m a lot more confrontational than you ever realized–a lot more of an asshole, and a lot more willing to “lose friends over politics” than you could possibly have imagined.
What you need to realize is that I’m not just willing to “lose friends over politics.” If a friend of mine showed up at my door armed, with an order for me to divulge the contents of my conscience and put me on a registry, I wouldn’t just de-friend them. I’d kill them if I could get away with it. Because friends of this sort are indistinguishable from enemies. Friendship without justice is not friendship at all. It’s an extended exercise in simultaneous self-deception..
What did you think was going to happen when someone decided to put me on a list like this? Was I supposed to remember all the J.D Vance hillbilly sob stories I’d heard? Was I supposed to call to mind the fears, opioid addictions, chronic unemployment, and military service of the heartland of this great country, and just let it go? Was I supposed to break down in guilt, sigh, sign the register, and tell myself, “But people are afraid…”? Or was I supposed to focus on the fact that my rights, my liberty, and my life were at stake, and act accordingly?
But hey…though you may have voted for Trump, there’s no need to demonize you, right? I mean, you’re a veteran, you’re a cop, you’re an IT worker, you work for the postal service, you’re an opioid addict, you’re a nice guy, you’re up for a beer, you love the Giants, you have a dog, you’re the father of daughters, you lost your job to the Mexicans and it’s been rough since then, you’re my neighbor and my pal, etc. …Guess what? I don’t fucking care. You’re my enemy now. And I’m going to treat you as one.
You think you can make ad hoc excuses for me because I’m one of the “good Muslims” or a “purely nominal Muslim” and the registry is only for the “bad guys”? Problem is, that’s not how Trump is selling it–not that the “only for the bad guys” idea made any sense in the first place. Too bad it didn’t occur to you to figure out how to operationalize any of the relevant variables. Too bad it didn’t occur to you that you’re not permitted to operationalize variables like that in the law at all. And if you don’t understand the preceding few sentences because you lack the education to understand them–unfortunately for you, that’s not my problem. You’re my problem. And from now on, expect to be dealt with that way. You can’t expect civility when you’ve got a gun to my head.
What gun? Well, if I refuse to comply with a demand to register, will I be arrested? If I resist arrest, will I be forced to submit? If I resist the latter coercion in a violent but self-defensive way, will I be shot? Not too many nice options here. And believe it or not, “patriotic” horseshit about “healing” and “accommodation” and “non-partisanship” doesn’t generate any nicer ones. You may never have had to deal with these questions in the little bubble you inhabit. But I’m facing them now.
I’d like to hear about this from people in law enforcement–presumably federal law enforcement, or from members of any local agencies who might be deputized to carry out federal functions of this sort. Are you willing to enforce a policy of this kind, or if it comes down to it, will you refuse to enforce it on grounds of unconstitutionality? You swore an oath to uphold and defend the Constitution. What does that oath say or imply about this?
Relatedly: It would be nice to hear our sitting president and sitting FBI director ask our president-elect pointblank what he’s talking about. We need more specificity from Trump than his transparent attempt to evade the issue. We spent a lot of time, effort, and money investigating Hillary Clinton’s emails and her responsibility for events in Benghazi–and came up with nothing. How about investigating this?
This is the world that Trump’s supporters have brought us. But they want our respect, and get so very angry when we criticize their lack of intelligence, their lack of integrity, their dishonesty, and their tendency to treat minorities as the collateral damage of their fascist policies.
I guess all I can say to Trump’s supporters, sympathizers, and excuse-makers is: feel free to cry me a river over your grievances. And feel free to drown yourselves in it, too. But whatever you do, don’t expect compliance. You won’t get it, until you put a gun to my head and threaten to pull the trigger. We’ll cross that bridge when we get to it, if we do.
I don’t agree with the tactic of having everyone register for this registry. That just confuses the issue. There is only one legitimate response: categorical refusal. You want to make me register? Come get me. But come armed. Because you’re “absolutely” going to need it.