Thanks again for the comments on my discussion of my piece on the Religious Test Clause. Let me offer some responses, divided broadly into comments about history and comments about my broader normative argument in favor of a narrow but deep reading of the Religious Test Clause.
History: First, Jon Rowe, who had many valuable comments, asks a basic question: What was Rhode Island's religious test during the Founding era? Let me quote from Gerard Bradley, whose article I cited in my first post: "Rhode Island, as in many church-state matters, was a special case: the Protestant monopoly there flowed from an exclusion of Catholics and Jews from citizenship, and not, precisely, from political office." Mr. Rowe also makes a series of broader points, arguing that we should draw some significance for our historical reading from the assertion that a number of key framers were not orthodox Christians. I don't dispute that assertion, but would say two things. First, those admittedly central individuals are not the only or even the authoritative figures here. In thinking about the historical understanding of the Clause, their views must be counted alongside the views of those whom they sought to convince — the other framers and the ratifiers of the Constitution. I have no algorithm to apply here in weighting their respective views; but my holistic reading of the history surrounding the debate over the Clause suggests to me, at least, that we should not read the Clause too broadly in light of these standout examples, especially in light of the real historical evils the Clause appeared fairly clearly to address. Second, as Mr. Rowe notes, although unorthodox, those key framers, and certainly many other framers, did not think virtue and character were irrelevant to political office; for most framers and ratifiers, religion (however broadly defined) was certainly a vital aspect of one's character. Finally, another commenter asks why the framers didn't use the word "oath" rather than "test." This is a fair question, but I will answer with the words of another commenter: "Porkchop," who points out that the word "test" did have a fairly clear meaning taken in historical context, and that most religious tests were in fact oath-centered, or otherwise closely related to the imposition of formal requirements of religious belief or conduct for putative office-holders. It is no answer to say, Justice Black-like, "'no test'" means 'no test,'" unless we understand something about the language used, taken in context.
Normative arguments: I got a number of interesting comments on this broader subject. A variety of commenters offered some variation on the view that my reading of the Clause leaves too much that is threatening and worrisome up for grabs: it "would mean there is no bar at all to open and wanton religious discrimination in granting public jobs [more precisely, public offices or trusts]." Another (Mark Field) writes that there is no principled difference between a formal religious test and an individual senator "asking each candidate to express that same sentiment [contained in the formal test] prior to giving 'advice and consent.' The test clause should preclude both, as well as more subtle efforts to circumvent it. The government simply has no business inquiring into religious opinion." Another commenter writes that character can always be a factor in a decision to nominate or affirm, but that "the Founding Fathers were pretty clear on the concept: No religious test, period." In short, a number of commenters think the Clause itself, or broader values we find in the Clause, preclude "government" from considering religion. Remember Prof. Tribe, suggesting that the Clause effectively secularizes the public order.
My general response is to suggest that the Religious Test Clause is revolutionary enough if understood on its own terms, and that the kind of larger "value" it is said to represent, one in which public decisions and debates (including decisions made and positions taken by office-holders) are largely stripped of religious terms, runs beyond what I understand our constitutional "values" to hold with respect to the role of religion in public debate and action. I agree that "government" is officially barred from taking particular official steps in particular areas, including a prohibition against formally erecting religious barriers to office. But I think there is a substantial difference between those formal tests and the possibility of religion playing a "more subtle" role in nominations and confirmations. To disable government from erecting religious barriers to public office is one thing; to say that religion must be presumptively and absolutely irrelevant to considerations of public office, I think, goes too far. Religion may be relevant in the way that a number of commenters were willing to recognize: indirectly, in its effects on how one would conduct oneself in office. But I think it can, for some decision-makers, be relevant in an even more direct way, in the sense that a decision-maker may believe, rightly or wrongly, that a candidate's views and beliefs display a character (or lack of character) that simply does not deserve to occupy a "public trust."
I agree that such a view is rife with potential for abuse. I also believe, however, that the penalties that are to be exacted for such abuse are fundamentally political in nature: and as the Miers example may demonstrate, those political remedies are by no means ineffective. (One commenter suggests that politicians can then simply conceal their religious motivations. Of course they can, under any regime. But information has a way of getting out, and in any event a politician who wants to support or oppose a nominee for religious reasons without saying so may either supply adequate public reasons, or the public reasons she supplies may be found so wanting that a voter can fairly conclude she is really acting for religious reasons and act accordingly. Better, in my view, to be candid about one's religious motives, and to be judged accordingly; but, of course, politicians may have both public and religious reasons for a particular decision, and can always offer both.)
Moreover, despite the potential for abuse, I think the cost of saying that religion is somehow a forbidden ground of discussion or decision for public decision-makers or citizens — and many who raised the Religious Test Clause argument during the recent nominations not only said it applied to politicians, but effectively treated it as disabling religion from entering into broader public debate — is greater than the benefit. It treats religion as the one and only set of values prohibited from entering into debate and decision on momentous public issues, and because so many citizens and officials clearly do think in religious terms about their decisions and will continue to do so under any regime, it robs us of a valuable degree of candor in public debate. Whatever broader values undergird our national understanding, then or now, I don't think they run to this kind of exclusion of religion from public deliberation, discussion, and decision, although obviously this is part of a larger running debate.
To say that religion may sometimes be relevant to public discussion and decision on nominees and other matters, and that the Religious Test Clause doesn't bar the use of religion in this way, although it does bar certain formal barriers to public office, is of course not the end of the story. We are then left to deliberate together about how and when (if ever) religion should enter into the public debate, or into the decisions of public officials. Although I clearly disagree with those who have answered "never," I also think we can invoke religion more or less wisely and carefully, and have said something about what that might entail. Jon Rowe concluded his comment yesterday by saying, "Personally, I'd rather live under a system of 'etiquette' where one's religion or lack thereof — whether one be a fundamentalist Christian or an atheist — is viewed as simply not related to one's fitness for public office." Taken at that broad level of generality, I can sympathize; but it is a short step from that principle to a public square that is denuded of useful, meaningful discussion. It also removes, one should acknowledge, much of what might be shallow and provocative sniping and religious bigotry — but that language, too, is the price of open debate, and knowing of that risk should remind us all the more of our own responsibility to enter into these discussions, and use both our votes and our voices, with some kind of sense of underlying principle and integrity that I've simply labeled "constitutional etiquette." Better, in my view, to have a system of etiquette where we can openly acknowledge and discuss religion, while remembering that it can never be a formal bar to public office — and in which we can add our own voices to the debate in pointing out that the mere labels "fundamentalist Christian" or "atheist" (or "Muslim") are far from descriptively complete, that they say very little about how particular individuals will carry out their offices, and that on such a broad level, they may not even say much about character.
As the always valuable Mr. Rowe commented, my reading of the Religious Test Clause can cut both ways politically. More on that tomorrow, with some concluding remarks on the differing reactions I've received to this article, and what they may suggest.
I think that the temptation will always be too strong for some to demonize those who do not share their beliefs. There certainly are plenty of references to godless liberals and Bible-thumping fundamentalist conservatives in discussions in this blog. Once it has begun on one side, the reaction will be similar from the other.
Those who try to extend the Test Clause beyond its original (and, I believe, plain) meaning, seem to think that there can be a legal solution to a political situation. That may be workable in some situations, but I don't think it will work in the realm of religion. There is at the bottom of every religious group's beliefs a sense that only they have the "Truth." Anyone who does not share that "Truth" is in some sense incomplete or defective. Depending on the exact differences in belief, the outsiders may be ignorant or slightly misguided, but still good, or they may be untrustworty, and, perhaps, even evil and dangerous. No restriction on speech -- legal, moral, "etiquette-al"(??) -- will change that judgmental aspect of human nature.
We might as well have the discussions in the open rather than behind closed doors, whether they are pleasant or not. I would much rather hear a Senator state that he will not vote to confirm a nominee for office because he does not trust people who hold similar beliefs, than to have the true motivation hidden. (I am not naive enough to think that legislators always reveal the real reasons for their votes, but I see no reason to put another layer of deception in place.) Let the voters decided whether those considerations are legitimate in decisions that their representatives make.
You are wrong. If you had actually read the primary sources, most notably the debates in North Carolina to which you fleetingly refer, you would have seen the words of James Iredell, later a Justice of the United States Supreme Court appointed by Washington, who argued as follows:
Clearly it was not "unimagninable," "unthinkable" or "inconceivable" that the founders contemplated that the "no religious test clause" would lead to non-Christian or athiests holding public office. Quite the opposite. Those who opposed the Constitution knew full well what rights it would secure.
If you read the debates, I think you will reconsider your conclusion that "whatever arguments won the day for the federalists, they surely had nothing to do with convincing the antifederalists that men of no religious faith, or the wrong faith, were fit for public office."
However, I'm sure that the antifederalists thought that they could prevent this outcome by voting for only those folks who have the "right" religion. John Jay has a few quotations often cited by the Christian Heritage crowd which talks about exactly this: Christians ensuring that only Christians enter public office by voting them in. That's how many ratifiers thought they could manage the potential risk of non-Christians or folks of the "wrong" religion being elected under a system which forbids official religious tests.
But Art. VI also, I think, helped insure that once America's demographics or sentiments began to change, non-Christians would have an easier time securing election.
First, I don't think that those who voted against the Constitution are "ratifiers," and I don't see how their statements can be considered evidence of the ratifiers intent other than as to show the views the ratifiers rejected.
Second, there can be no dispute that the proponents of the Constitution, as evidenced by the full debate in Massachusetts and North Carolina which is only briefly referenced by Horwitz, forcefully argued that not only could non-Christians and athiests achieve office, but that it was not undesirable that they should.
Third, it is beyond any conceivable dispute that both proponents and opponents of the Constitution foresaw that non-Christians would obtain office, they even took into account the effect immigration would have in changing the character of our country as time passed. True to their predictions, a "Papist" has been elected President, and a "Mohametan" was elected Congress (reviving the religious test clause debate when ignorant folks got upset that he would not be taking his oath on a Bible).
I don't blame Prof. Horwitz for his deficient reading of history. Unfortunately, lawyers and Judges aren't trained as historians (as Rehnquist famously proved). And, law professors probably don't the have the time or inclination to actually wade into the historical research with sufficient seriousness. I think that Prof. Horwitz can reach his very limited conclusion without engaging in a quasi-historical argument, because ultimately his argument is rooted in a textual analysis of the "no religious test clause" not a historical analysis of the legislative history. But, if he's going to attempt a historical analysis, he's got to do a better job than by making the kinds of overly broad and incorrect statements I've highlighted, and he's got to provide the full context for the quotations upon which he's relying (which effectively means he's got to change the assertions in his paper).
In response, the proponents of the Constitution also took their case to the public, such as Oliver Ellsworth (later Chief Justice of the US Supreme Court) argument in the Connecticut Courant of December 17, 1787 that:
No, I think we have to take the Constitution at its word: no "test" -- formal, explicit, and statutory -- for public office. Testing for religion, inquiring about it, and discriminating because of it are all sleezy (IMO), but only the first is unconstitutional.
Don't you think that some/many folks voted FOR the Constitution's ratification knowing 1) that it excluded religious tests, which meant 2) that conceivably Jews, Pagans, Papists, Muslims, Deists, Unitarians, Atheists, Infidels, etc. could be elected to public office, but 3) nonetheless they thought this wouldn't likely happen as long as a nation comprised largely of Christians voted only for folks of the "right" religion.
I'm sure many folks thought exactly this; however, that doesn't mean they were good political prognosticators. I think that's what's kind of ironic about the point I make about key Founders/early Presidents. For the most part, they all had formal/nominal afilliations with Protestant Churches which professed orthodoxy (w/ Washington, Jefferson, and Madison, it was Anglican/Episcopal; Adams was a Congregationalist which had Puritan roots; but his Church began preaching unitarian doctrines as of 1750; I'm not sure however, when his Church officially changed its creed, whether it was before or after his Presidential election). If they thought they could ensure having orthodox Trinitarian Christians only in public office by inquiring into one's religion and so voting, judging by the results of whom was elected President, they were wrong.
The forces of religious correctness were not "confident" that Washington was a pious Christian (as Peter A. Lillback asserts) but rather hoped he was and pestered him to put his cards on the table, which he didn't do. Regarding Jefferson's election, many ministers knew he was an "infidel" and admonished the population of believers (as was their right to do) not to vote for him. But the population voted him in anyway. They knew they couldn't petition Congress to pass a religious test forcing an elected official to profess orthodoxy or belief in God at all. They'd have to amend the Constitution to achieve those results.
I suppose the President Pro Tem could rule such a vote out of order, but I don't really think it's necessary to go that far. If candidates don't care to disclose their religious opinions, then there won't be much basis for such an announcement, nor is it likely to be followed by other Senators.
What my interpretation would do is establish a rule of public discourse. Just as (today) no one announces publicly that s/he won't vote for a n****r because we have removed that word and that attitude from acceptable discourse, so it will be with religious bigots if we make rules that discourage inquisitions into their religion such as Justice Roberts had to face.
Again to clarify: nothing I've said prevents or discourages inquiry into a candidates position on specific issues. It's ok to ask if someone opposes or abortion or the death penalty. It's not ok to ask if they do so because they're Catholic.
I don't think its valuable to speculate contrary to the evidence. As I read the debates, the main argument in response to the notion that non-Christians would achieve elected office was not that this was an unfounded fear, but the principled response that there was no justification for such bigotry. I prefer to give the proponents of the Constitution the benefit of the doubt that they believed their main argument, instead of making an assumption, for purposes of Constitutional interpretation, that they were voting based on a much less emphasized wink/nudge argument that no one would vote for a non-Christian -- especially given that they knew they were drafting a Constitution for all time and they knew how immigrants would change this country.
To put it another way, Madison argued in Federalist 51 that it was good thing that anyone, whatever their personal beliefs, could achieve office in the U.S. I don't believe he ever argued that non-Christians wouldn't obtain office. So why should I speculate for purposes of Constitutional interpretation that the ratifiers voted to approve the "no religioust test clause" out of the hope it would be without effect or meaning? Especially when in the debates, they argued that it was imbued with a much broader meaning than Horowitz wants to admit?
First, there is no evidence that the pro-Constitution forces were opposed to religious tests because they could not craft a uniform test. To the contrary, the evidence shows that they opposed religious test for very principled reasons.
Second, the pro-Constitution forces clearly did not believe it was easier to "let the states go their own way." It was to achieve the opposite result, after all, why they drafted a Constitution.
I don't think it is legally or historically responsible to speculate without evidence as a basis for Constitutional interpretation.
I thought that I was raising a fair point for discussion, Frankly, I feel very comfortable with my irresponsible speculation that it might have occurred to some of the drafters of the Constitution that there were practical, as well as principled, reasons to prohibit a religious test. They were, I think we all agree, generally smart guys who were well-versed in the social and political facts of their day.
But, feel free to keep up the ad hominem if it makes you feel better.