Most Americans have probably never heard of the McCarran-Walter Act.
Congress passed it in 1952, while the United States confronted Soviet expansion, espionage and subversion. The law raised a question that remains relevant today: How does an open society protect itself from those who may seek to use its freedoms against it?
The formally named Immigration and Nationality Act of 1952 made several changes to American immigration law, including restrictions based on adherence to communism, espionage or subversive activities. Later Congresses continued to reshape immigration law, but an important provision of McCarran-Walter survived.
Section 212 of the Immigration and Nationality Act, codified as 8 U.S.C. §1182, still permits the United States to deny admission to certain noncitizens on national-security grounds. It touches on espionage, sabotage, “any other unlawful activity” and activity whose purpose includes opposition to, control of or overthrow of the United States government by “force, violence or other unlawful means.” Separate provisions address terrorism and material support.
However, American law does not prohibit an idea merely because it is radical. A communist may advocate communism. A democratic socialist may advocate socialism. A Muslim may believe that Islamic sharia law represents a divinely ordained moral system.
The American experiment permits argument and persuasion, even arguments that America should become something very different. The law enters the picture when persuasion becomes coercion; when objectives are pursued through violence or unlawful means; or when conduct falls within prohibitions Congress has expressly enacted.
Sharia offers one contemporary test. Voluntary religious observance is protected, and a Muslim may order their religious life according to Islamic belief just as adherents of other faiths may follow their own religious laws or doctrines. So, the issue is not whether someone may believe in sharia. It is this: When does an effort to impose religious belief through governmental authority, coercion or unlawful conduct begin to infringe the constitutional rights of others? That standard must apply to every religion.
Texas authorities are presently investigating a Dallas organization known as the Islamic Tribunal over allegations that it represented certain sharia-based rulings as carrying judicial authority. The investigation is ongoing; the allegations have not been adjudicated; and an allegation is not a fact. But if the facts are established, where would the law draw the line?
Hamas presents a different example. Its 1988 covenant identified the organization with the Muslim Brotherhood and articulated an Islamist political program for “Palestine.” That document does not tell us what Muslims generally believe. It tells us what Hamas itself declared.
The Holy Land Foundation prosecution shifted this issue from ideology to adjudicated conduct. Federal prosecutors proved that the Holy Land Foundation (HLF) and its leaders provided material support to Hamas. The Fifth Circuit later affirmed the convictions and sentences. The government’s case included evidence that the Muslim Brotherhood had created a Palestine Committee in the United States to support Hamas, with HLF serving as its principal fundraising arm. Those findings concerned specific organizations, individuals and conduct, not a religion.
Evidence should neither be exaggerated nor ignored simply because its implications are uncomfortable. What was said? What was done? What has been proved? And does such conduct implicate the principles or statutory provisions Congress preserved?
The same should apply to secular political movements. The Democratic Socialists of America advocate significant changes to America’s economic and political system and participate openly in electoral politics. One may strongly oppose its program, but lawful political advocacy is not unlawful overthrow. The Constitution permits Americans to argue, organize, vote, run for office, and advocate for legislation and constitutional amendments.
The line is not radicalism. The line is unlawful conduct. That principle must apply whether an ideology comes from the left, the right, religion or elsewhere. Otherwise, liberty becomes merely protection for those with whom we agree.
McCarran-Walter’s history sounds two warnings: 1) A free society can become so fearful of hostile ideas that legitimate security concerns become overbroad restrictions on lawful belief and dissent. 2) A free society can also become so reluctant to defend its constitutional order that it stops distinguishing lawful advocacy from unlawful conduct.
Circumstances have changed dramatically since 1952. Ideas cross borders instantly. Political and religious movements organize globally. Foreign organizations can influence domestic debates from thousands of miles away.
The technology changed. The actors changed. The law evolved. The underlying questions did not:
- Can we protect speech with which we profoundly disagree while enforcing laws against violence, terrorism and unlawful coercion?
- Can we protect religious liberty without establishing governmental religious authority?
- Can we distinguish those seeking to change America through persuasion from those prepared to use unlawful means?
- Will we apply those standards consistently when the answers are politically inconvenient?
Those questions are part of the American experiment. McCarran-Walter was one generation’s imperfect effort to answer them.
As America approaches the 25th anniversary of 9/11, the distinction between openness and vulnerability deserves renewed examination. For now, this little-known law of 1952 leaves us with a more fundamental question: Can we remain free enough to tolerate profound disagreement and vigilant enough to protect the constitutional order that makes such freedom possible?
