It was Associate Justice Elena Kagan, former solicitor general, former Harvard Law School dean and brilliant liberal, who raised the question during Wednesday’s United States Supreme Court argument on the latest travel ban.
It’s the same question I used to raise with my students whenever they jumped too quickly to the conclusion that a restriction imposed by us against them was justified. It’s the question my mother spent most of her life worrying about, and with reason: What if it were the Jews?
What if, Justice Kagan asked, an anti-Semite were to be elected president of the United States, and only days after taking office, amidst a flurry of virulently anti-Semitic tweets, banned travel from Israel? What then?
The solicitor general seemed to dodge Kagan’s question with ease. After all, he pointed out, the ban applied only to a handful of Muslim countries, not all Muslim countries. It was not, he kept saying, a Muslim ban. And besides, he reminded Justice Kagan (as if she did not know), Israel is one of our closest allies.
Listening, I almost pulled off the road.
Couldn’t happen to the Jews.
Of course it could. It did. And what did we learn from that?
Meanwhile, a caravan of refugees moves toward the Tijuana border, in the face of a president who has vowed repeatedly, on Twitter even, to stand up to them. You hear all kinds of people crying that we need to turn them back, although it’s yet to be explained exactly how.
I don’t mean to suggest for a moment that their plight is the same as that of the Jews fleeing the Nazis and the gas chambers.
But the idea of turning desperate people back at the border, telling small children to endure a trip back to who knows where, has a familiar ring to anyone who has made their way through the Holocaust Memorial Museum in Washington, D.C., or through the history books. It seems like ancient history now, but it isn’t really. A lifetime ago is all. Eighty years. And desperate Jews arriving on a ship called the St. Louis, 937 strong, arrived in Cuba in 1939. Only 28 were permitted to disembark: 22 of them had U.S. visas; the other six had other valid entry documents. Cuba barred the rest. They could see the lights of Miami. They sent wires to President Franklin D. Roosevelt begging for refuge. They were turned away.
The president could have issued an executive order to spare their lives. And they were fancy Jewish refugees, much fancier than my Russian grandparents, whose circuitous routes here (my grandfather came via Argentina, for instance) raised questions that we never asked. Even so, more than 80 percent of Americans were opposed to relaxing immigration quotas at the time. Having suffered through the Depression, many of these Americans were worried that immigrants would hurt the economy.
Or maybe, as Justice Kagan suggested, it’s possible that some people just didn’t like Jews.
President Roosevelt did not issue an executive order to grant refugees entry. The Jews were sent back to Europe, and 254 of them eventually died in the Holocaust.
It is true, as the solicitor general argued, that many Muslim- majority countries are not included in the ban. It is also true that the ban applies only to Muslim-majority countries. It is true that Islam is one of the most widely practiced religions in the world. It is also true that Islamic extremism is one of the most dangerous movements in the world. How we navigate these waters can only be guided by the fundamental principles of a constitutional democracy. We treat people as individuals, not as members of groups. If we bar people from this country, we should do so to individuals. If we are to decide who deserves asylum in this country, we should do so on an individual basis.
The caravan to the border, and the Administration’s response to it, might well be based on scripts written by communications gurus vying to win public attention and support. But as every interview painfully reveals, the people in that caravan are anything but actors on a stage. If they are being used as props — and perhaps they are — they are also living and breathing men, women and children who are seeking a better, freer, safer life for themselves and their families. It’s a dream most of us can identify with. We call it the American dream.
