Does the First Amendment Apply to Muslims?

Many conservatives have begun to suggest that Islam may be incompatible American democracy and the constitution.

Ramesh Ponnuru and Calvin Freiburger both take me to task for supposedly misrepresenting the thinking of National Review’s Andrew McCarthy. Are they right? You decide.

Last week, here at FrumForum, I wrote that

McCarthy suggests we might have to reconsider whether the First Amendment ought even to apply to Muslims. After all, he argues, ‘intolerance is not just part of al-Qaeda; it is part of Islam.’

Ponnuru objects. He notes that in the McCarthy column that I cite, McCarthy writes, “No one credibly questions the legal right of Muslim landowners to use their property in a lawful fashion.”

Freiburger agrees. I have, he insists, “flat-out lied about Andy McCarthy.” No surprise there, he adds. “That sort of thing is standard operating procedure at FrumForum.”

Let’s see.

The First Amendment protects the free exercise of religion. But McCarthy does not agree that Islam is a religion in the sense protected by the First Amendment. Thus, he writes in his new book, The Grand Jihad:

“Islam is not merely a religion. It is a comprehensive socio-economic and political system, which believers take to be ordained by Allah. To be sure, its elements include tenets we in the West would regard as religious creed… Such tenets, however, constitute only a fraction of the overarching Islamic project.

What we thoughtlessly call the ‘religion’ of Islam also includes an all-encompassing corpus of law: not just religious canons but civil and criminal rules and procedures. Moreover, Islam entails voluminous guidelines for social interaction, including sexual conduct, other relations between men and women, and relations between Muslims and non-Muslims.

It prescribes guidelines for the foundation of government; for property ownership use, development, and inheritance; for the conduct of commercial transactions; and for the use of force, the striking of treaties, and the circumstances under which seemingly solemn agreements may be abrogated.

If Islam is not a religion, or “not merely a religion, [but rather] a comprehensive socio-economic and political system,” then large elements of Islam must not be protected by the First Amendment. There’s no First Amendment protection, after all, for the abrogation of treaties.

As Daniel Luban keenly observes in the online magazine, Tablet:

At times, McCarthy speaks the language of religious tolerance, arguing simply that Islam should not have a ‘sacrosanct status’ denied to other religions. Yet it becomes increasingly clear that he is in fact arguing for special targeting and discriminatory measures against Islam, and he eventually concedes that he believes it is wrong to place Judaism and Christianity ‘on a par with an inherently discriminatory, supremacist doctrine.’

As a result, ‘foreign Muslims should not be permitted to reside in America unless they can demonstrate their acceptance of American constitutional principles.’ (But how, given [what McCarthy calls] the Muslim propensity for dissimulation, can we be sure that their professions of loyalty are genuine?)

McCarthy has written that “Islam is innately political,” and that “Islam and Communism are aligned… Both are diametrically opposed to the core assumptions of American constitutional democracy: individual liberty and free-market capitalism.”

He has called Islam’s legal code “totalitarian.” He rejects the concept of moderate Islam as an “invention” that “does not currently exist.” He declares, in the subtitle of his book, that Islam -- not radical Islam, but Islam -- is a fifth column political movement intent on “sabotaging” America.

Perhaps McCarthy holds a personal mental reservation that extends the First Amendment even to totalitarian saboteurs. But whatever his inner views, his writings would certainly lead others to believe -- would “suggest” in my language -- that Muslims do not qualify for First Amendment protection.

And ominously: McCarthy is not alone.

Over at David Horowitz’s NewsReal Blog, for instance, David Swindle insists that:

It’s time to stop regarding Islam as though it’s a religion. It’s not. The ‘faith’ practiced as written and following the example of its founder is a totalitarian political program seeking world domination. That’s always been the core of what Islam is all about. The ‘religious practices’ inherent in the ideology are mere window dressing.

You can dismiss Swindle as an extreme voice, but his views are shared by retired Lt. Gen. William Boykin, the Special Forces commander turned conservative icon.

Indeed, Islam “is not a religion,” Boykin told Human Events. Extending First Amendment protection to Muslims, he added, was a “fundamental mistake.”

Nina Shea, writing at National Review Online, doesn’t go quite that far. However, she does argue that “there are limits” to religious liberty.” And so, she explores “where religious freedom [for Muslims] might be limited.”

Most ominously, Newt Gingrich, a front-running candidate for the 2012 Republican presidential nomination, seems to agree with McCarthy and other anti-Islam conservatives.

Thus, in a July 29 speech at the American Enterprise Institute, Gingrich called the planned lower Manhattan mosque “stunningly outrageous” and a “political act, not a religious one.”

Sharia, he added, “is a mortal threat to the survival of freedom in the United States and the world as we know it… I’m frankly very tired of being lectured about religious liberty…”

If Gingrich is tired of being lectured about religious liberty, it may be because he and others on the Right – including Andrew McCarthy – are insufficiently respectful of the First Amendment. Indeed, they’ve suggested – and, in McCarthy’s case, argued explicitly – that Islam is incompatible with American democracy.

But as I pointed out last week, this implies that the constitutional protections of American democracy cannot apply fully to American Muslims. The American founding fathers knew better and our Constitution says otherwise.

You can follow John Guardiano on Twitter: @JohnRGuardiano