American history is pockmarked with countless episodes of racial and religious discrimination.


City Upon the Hill


As Americans, we are fond of perpetuating our own storybook myth, beginning with the pilgrims in 1620 and followed by the Puritans, that there is a mythical “city upon a hill,” as their governor John Winthrop called it, where there is a “melting pot” of all people who can come and practice their own faith.


The reality is, however, as Kenneth Davis pointed out in his 2010 Smithsonian piece, that “this tidy narrative is an American myth. The real story of religion in America’s past is an often awkward, frequently embarrassing and occasionally bloody tale that most civics books and high-school texts either paper over or shunt to the side. And much of the recent conversation about America’s ideal of religious freedom has paid lip service to this comforting tableau.


“From the earliest arrival of Europeans on America’s shores, religion has often been a cudgel, used to discriminate, suppress and even kill the foreign, the ‘heretic’ and the ‘unbeliever’—including the ‘heathen’ natives already here. Moreover, while it is true that the vast majority of early-generation Americans were Christian, the pitched battles between various Protestant sects and, more explosively, between Protestants and Catholics, present an unavoidable contradiction to the widely-held notion that America is a  ‘Christian nation.’”


The American Religious Cudgel and Trump


That uniquely American religious cudgel is about to be used in the worst kind of discriminatory manner, if President-elect Donald Trump and some of his most fanatical Islamophobic supporters have their way. One of those supporters is a Trump immigration adviser named Carl Higbie. Higbie, a former Navy Seal and author, is the spokesperson Great America PAC—one of the first super PACs created to support Trump that spent some $30 million to help him get elected.


Japanese Internment Camps Precedent for Muslim Registry


During a recent appearance on Fox New with Megyn Kelly, Higbie endorsed the notion of creating, as the Washington Post described it, “a registry for immigrants from Muslim countries.” He justified the creation of such a registry by comparing it to the Japanese internment camps set up in the U.S. during World War II.


Korematsu v. United States


Those supporting a Muslim registry point to the 1944 U.S. Supreme Court decision, Korematsu v. United States, that upheld this horrendous program implemented by the F.D.R. Administration and military leaders that initially placed Japanese-Americans living on the West Coast under curfew before removing 120,000 of them from their homes and into “internment camps.” The court upheld the internment program as being necessary “to national security.”


What the supporters do not say is that the Korematsu decision has been so vilified by the courts and legal scholars (even comparing it to the infamous Dred Scott decision) that it has no precedential value.  This was evidenced in the 2015 decision by the Third Circuit Court of Appeals, Syed Farhaj Hassan v. The City of New York, in which court held that Muslims had a constitutional right to sue city officials for its highly discriminatory police surveillance of people of Islamic faith. In Hassan, the appellate court noted that the lesson to be learned from Korematsu is that the government’s use of a suspect classification to protect national security must be “appropriately tailored.”


The modern-day Supreme Court view of Korematsu was expressed by the late conservative Justice Antonin Scalia, the model justice whom Trump says he will use to make his high court nominees.  In the 2003 decision, Grutter v. Bollinger, Scalia said “the lesson of Korematsu … is that national security constitutes a ‘pressing public necessity,’ though the government’s use of race to advance that objective must be tailored narrowly.”


Regret of WWII Relocation Camps and Red Scare Cases


In a 1989 decision,  Skinner v. Railway Labor Executives Assn., the late liberal justice John Marshall expressed the modern-day Korematsu view this way:


“The World War II relocation-camp cases and the Red scare and McCarthy-era internal subversion cases are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.”


The lower federal courts have uniformly struck the view that Korematsu should not be a preface to bend “our constitutional principles” because some “national security interest” may be in play. These views reflect Justice Robert H. Jackson’s dissent in Korematsu that the courts “can apply only the law, and must abide by the Constitution, or [they] cease to be civil courts and become instruments of [police] policy.”


Individual Disloyalty Does Not Justify Discrimination Against Entire Group


The Third Circuit in Hassan elaborated on Justice Jackson’s statement:


“We believe that statement of Justice Jackson to be on the right side of history, and for a majority of us in quiet times it remains so … until the next time there is fear of a few who cannot be easily sorted out easily from the many. Even when we narrow the many to a class or group, that narrowing—here to those affiliated with a major worldwide religion (Islam)—is not near enough under our Constitution. ‘To infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny under our system of law individual guilt is the sole basis for deprivation of rights.’


“What occur[ed] here (police surveillance of all Muslims) is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily come to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that ‘loyalty is a matter of heart and mind, not race, creed, or color.’”


Disturbing Trend of Hatred, Intolerance and Fascism


A disturbing trend of racial hatred, religious intolerance, and political fascism has gripped this nation’s by its very soul. The only protection we have from political fanaticism, like those pushing for a Muslim registry, lies in our courts of law. The Constitution will rule at the end of the day. Korematsu is not the constitutional life line that proponents of a Muslim registry believe it to be. That decision is as toothless, and it most certainly should be, as Dred Scott.


We simply cannot travel down the insane political path that we must punish a group of millions with the brand of disloyalty because there “may” be a few disloyal individuals in that group. We are better than that as a people, as a nation.


The creation of programs like a Muslim registry may serve as an immediate license for official lawlessness and public religious intolerance, but our Constitution will not stand for it. Our Constitution is greater, stronger, and more lasting than those who dare try to subvert its intent and purpose through racism, bigotry and religious discrimination. The Constitution will always be this great nation’s beacon, the stalwart of protection for the minority against the biases of the majority.