Thomas Jefferson's Qur'an:

From the Founders to Trump: The legalities of “Muslims”

posted by Anver Emon

Thomas Jefferson's Qur'anWhen Denise Spellberg’s Thomas Jefferson’s Qur’an came out during the presidency of Barack H. Obama, it displayed a most palpable irony: The very founders whose arguments and writings are relied upon to decipher the original meaning of the Constitution debated whether to include a religious test for the presidency. Thomas Jefferson was adamant against such tests, and argued against them by purporting an inclusive vision of the American republic. Indeed, relying on the received image of the “Muslim,” he argued that even if a candidate were Muslim, he would still be an American and that is all that mattered for the office. When Obama was elected president, many in the United States believed, to their consternation and resentment, that we voted a Muslim to the highest office in the land. The irony, of course is, that this was not the first time a US president had been accused of being a Muslim (as if that were a bad thing). Thomas Jefferson’s detractors also held him in contempt for being a Muslim. So if we allow for alternative facts to carry the day, the United States has had two Muslim presidents.

While re-reading Spellberg’s book now, through what I can’t help but call a “Trump heuristic,” that particular irony no longer resonates for me. It is not merely because we have a new president; rather it is because the current administration has so demonized the Muslim as foreigner and threat that instead, another one of Spellberg’s ironies occupies my mind. Writing about the image of the “Muslim” at America’s founding, Spellberg writes how debates on religious tests for office were informed by European ideas about Muslims. As Spellberg points out, the delegates debating religious tests relied on ideas about Muslims that “had been filtered through a complex web of associations both foreign and frightening, as attested by their persistent allusions to Islam as a civilization of threat.” Without irony, slave-holding delegates debating religious tests construed the “Muslim” and the “Islamic” by reference to “Ottoman despotism or the predations of the four pirate states of North Africa,” despite the likelihood that “they themselves may have lived in proximity to real Muslims of West African origin, for whom they were the oppressors.” The Founding Fathers who debated the hypothetical of a Muslim president of the United States relied on inherited images of the “Muslim” as foreign, distant, and threatening, despite the fact that Muslims worked as slaves for those same men.

This irony continues to haunt me today, as I reflect on Islam as imagined by medieval Europeans at the same time that I watch the Trump administration construe the “Muslim” and the “Islamic.” Today’s irony, though, takes on different aspects in the two executive orders that are characterized as Muslim bans, an irony with a long, distant pedigree.

Trump and his supporters cast the Muslim as foreign specter. The courts, on the other hand, see Muslims as domestic, as civic participants, as neighbors. The courts represent the scanning eye that not even the founders of the United States had when they debated religious tests for the presidency. But in all the propaganda and protest, there is a curious, implicit association of Islam and Muslims with competing and contradictory images of law. Specifically, the paradox of how the “Muslim” is cast as both being without (good) law (in this sense, Law-Less), and alternatively so full of law (i.e. Law-Full) as to be automatons of fundamentalist compliance.

President Trump issued two executive orders that banned immigrants and refugees from certain Muslim-majority states: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The second order left Iraq off this list. Reading across both orders, we can identify the paradox of Islam as Law-Full and Law-Less operating simultaneously, though in the distinct registers of the “state” and “religion.” The objective of the first Muslim Ban was framed in terms of national security amid regions of instability where terrorist groups may operate freely and across borders:

Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

The debate on the travel restriction initially focused on whether it was the long-awaited Muslim ban that Trump promised in the election. The administration countered that the executive orders were national security measures authorized under the president’s discretionary authority over immigration. But this dispute about characterization operates as if the two are mutually exclusive. If we understand the “Muslim” and the “Islamic” as constructs doing political work, we should recalibrate our analysis by asking how the orders fashion a national security policy by reference to the “Islamic” and the “Muslim.” Certainly nothing in the first order expressly stated as much. Many looked to Trump’s tweets and campaign promises to frame the first order as a Muslim ban. But that text itself gave the “Islamic” away—indeed, the “Islamic” was intimately intertwined in the very construction of the nation that must be protected.

Trump’s first order situated the United States in an international state system in which the principles of territorial sovereignty, jurisdiction, and border management have broken down in some states. Countries like Somalia, Yemen, and Libya, which have suffered years of conflict, have limited institutional capacity to manage their domestic affairs, let alone their borders. In other words, these states suffer from too little law: they are fragile, failing, and lack the rule of law. In short, they are Law-Less. These are not the only states in the world that underperform. However, the fact that these countries happen to be Muslim-majority states creates the relevant nexus to the “Islamic” that makes the Trump’s order a Muslim ban.

Thinking about the trope of Law-Less as applied to these Muslim-majority states, I recall the words of Pope Urban II, when he declared the First Crusade in 1095 at the Council of Clermont. After first berating Europe’s knights for infighting, he called them to fight the conquering Muslims of Jerusalem. Of particular interest is his line about the Temple of Solomon: “But why do we pass over the Temple of Solomon, nay of the Lord, in which the barbarous nations placed their idols contrary to law, human and divine?” Coupled with the Muslim as “barbarous” is the Muslim who has no law, or at least no good law. Muslims, in other words, are Law-Less. Fast forward to 2017, and Trump implicitly substantiates his concern about domestic security by reference to the law-lessness of Muslim majority states who permit “bad hombres” to traverse poorly policed borders to enter the United States with an existentially threatening all-encompassing “Islam.”

That all-encompassing Islam comes from the extremist groups that fill the vacuum of these underperforming Muslim majority states. As the second executive order verified, these states create space for Islamist extremist groups such as al-Shabab in Somalia, al-Qa’ida in the Arabian Peninsula, and ISIS in Iraq to operate freely. These non-state actors promote a vision of religious politics expressed through Sharia, which offers a second register through which to imagine “Islam” as so full of law—so Law-Full—that presumably Muslims who cross the border cannot help but bring that Sharia to America’s borders, comply with its dictates like automatons, and thereby threaten the democratic fabric of the United States. The order itself reveals that existential threat when it identifies disfavored practices in its purpose statement. This inclusion of belief and practices, specifically the references to violent ideologies, violence against women, and the persecution of minorities, serves as facially neutral proxies for Islam.

For instance, the debate in some quarters about whether Islam is a “religion” or a “way of life” or a “political ideology” reflects a concern that Islam is a totalizing tradition that stands in contrast to, and seeks to supersede, all other political ideologies such as democracy and liberalism. On this construction of the “Islamic”, proponents of democracy must be wary of creating space for the “Islamic”, with all its laws, lest it erode the very fabric of a democratic public sphere. The Center for Security Policy’s 2010 report, Shariah: The Threat to America characterizes Islam, and in particular Islamic law (Sharia), as a “totalitarian socio-political doctrine . . . Translated as ‘the path,’ shariah is a comprehensive legal and political framework. Though it certainly has spiritual elements, it would be a mistake to think of shariah as a ‘religious’ code in the Western sense because it seeks to regulate all manner of behavior in the secular sphere—economic, social, military, legal and political.” Far from being contained, Sharia as a proxy for “Islam” writ large threatens to unravel the very fabric of liberal democratic orders such as the United States. Among the new threats the “Islamic” will push upon hapless Americans are the all-too-available legal rules encompassing patriarchy—as evidenced by rules on marriage, divorce, inheritance, and child custody—and religious intolerance, such as the so-called “dhimmi rules” of premodern Islamic legal history that discriminated against religious minorities. The first order’s inclusion of these beliefs and acts speaks implicitly, and importantly, in facially neutral terms, to a long-standing construction of the “Islamic” as supercessionist, patriarchal, and intolerant of other religious beliefs.

Both of Trump’s executive orders employ the two depictions of the “Islamic” and the “Muslim” in different and competing registers. Muslim majority states are Law-Less given their institutional limitations, while Islamist groups are Law-Full given the prevailing assumptions about Sharia as a totalizing ideology that competes with democracy no less. Trump’s executive orders utilize the two conflicting characterizations of the “Islamic” and the “Muslim” as Law-Full and Law-Less at the same time and in the same document, but in different registers. Most poignantly, in light of Spellberg’s book, both characterizations cannot help but continue to cast the “Muslim” and the “Islamic” as foreign, as fundamentally different, and as dangerous. And even when the courts domesticate the Muslim by enjoining both orders, the courts cannot help but do so by reference to domestic liberal legal principles of equality and religious freedom. To make the Muslim domestic is in one sense to render the Law-Fullness and Law-Lessness of Islam and Muslims irrelevant. But in no way do the courts’ decisions actually contest the characterizations.

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