The Volokh Conspiracy - Final Thoughts on the Religious Test Clause and Judicial Nominations:

Thanks again for many interesting comments on my discussion of this article on the Religious Test Clause. Let me add that the comments to my last post may be of special interest to those who are interested primarily in the historical debate, since it contains some citations offered to critique my view that, for many of the framers and ratifiers whose understanding of the Test Clause may be counted as relevant, it would have been highly unlikely that they would have welcomed various non-Christians or non-believers as public office holders. Commenter "cityduck" offers some valuable contrary evidence. My view remains that, taking the evidence as a whole, many of those figures would have agreed to ban religious tests at the federal level, but would not have gone so far as to say that religion must and should be somehow irrelevant at the level of public debate and official deliberation about federal office-holders. Still, cityduck's evidence is well worth reading.

I did not intend to throw bombs with this paper: it tries to settle a sometimes heated public debate about the use of religion in judicial nominations and to correct what I took to be the frequent and incorrect invocation of the Religious Test Clause in recent public discussion. It uses that correction as a launching point for a broader discussion of the ways in which We the People, both private citizens and public actors like the President and the members of the Senate, might police the use of religion in public discussion in this and other areas, welcoming its presence while thinking about how to engage in such public discussions with care, consistency, and integrity. I think I did a reasonable job, and the commenters here have generally suggested so -- to the extent of worrying that my narrow approach dampened what might be a hot discussion.

And yet, having presented these views in a variety of fora, I'm struck by the occasions on which I have sparked more passionate concerns and disagreements on these issues. I think those occasions say some important things. I'd like to talk about some of those reactions.

I've had several different kinds of audiences for this paper, and several different kinds of reaction. Although the comments to my posts this week were generally supportive and always thoughtful, even in disagreement, I first posted these thoughts (on Prawfsblawg) closer in time to the Roberts and Miers nominations, and then the reactions from the general public were often of the blunt, "no test means no test" variety. And yet most people who reacted to this week's posts, including those who disagreed with my reading of the Test Clause, didn't take this line of argument. This suggests a couple of things to me. First, constitutional interpretation is often clumsiest and bluntest when one is most in the thick of an ongoing controversy. At those moments, people are less concerned with maintaining a strong consistency with the approach they take to constitutional interpretation at a moment of repose. Certainly many of the public commentators who spoke out on the Religious Test Clause issue at the time of the nominations were far less concerned with deeper questions of text, history, and structure than they are at other times. They were deeply concerned with defending the Roberts nomination, and so were willing to expand the Test Clause beyond its proper scope, in a way they would not be for other constitutional provisions. When it came time for the Miers nomination, which many conservatives opposed, they were more than willing to argue for a consistent view against the President's invocation of religion in her support, even though, again, it's far from clear that the Religious Test Clause required such a view. It's perhaps an obvious point, but one we are apt to lose sight of at heated moments: we should be wary of those whose approach to interpreting the Constitution changes depending on how strongly they are looking for a particular result in the moment, and far more intent on judging those views for their methodological consistency and integrity. (Of course, this can be true of folks with a variety of different substantive views and political ideologies.)

A more interesting set of responses came from those who are openly religious, and here we might crudely distinguish between religious individuals who are committed to the place of religion in the public square, and religious individuals, largely of minority faiths, who mostly fear that any invocation of religion in public debate will be used against religious minorities and cause far more division and bigotry than they think can safely be tolerated. "Public square religionists" were far more likely to accept my thesis, and also far more likely to accept its corollary: that religion's entitlement to invocation in the public square also entails the right to criticize religion and religious individuals or beliefs in the public square. They accepted the possibility of criticism as an acceptable price to pay for the inclusion of religion in public discussion. Others worried that allowing any mention of religion in public debate, and in considering nominations for federal office, will inevitably devolve into religious bigotry, typically against a minority faith; better, for them, to protect religion as a fundamentally private activity, and to erect barriers against its public invocation. I think these individuals were appealing to a reasonable concern, but that protecting religion through privatization is too high a price to pay. In any event, public invocation of religion is inevitable in our society; better, then, to try to craft rules to evaluate such invocations, however imperfect they may be.

Finally, let me say that I've been teaching law and religion at Notre Dame Law School this semester, and it's been a wonderful experience, with many thoughtful and engaged students -- predominantly Catholic, most likely, but from a variety of faiths. These students, by and large, seemed to share my intuitions about the Religious Test Clause and the inevitability of religion figuring in the consideration of judicial and other nominees, even though I think I left the discussion sufficiently open-ended that I was not pushing them in this direction. It's especially noteworthy because Catholics have been the most prominent targets of religiously based questioning of various nominees, and so in some ways have the most to gain from a broad reading of the Religious Test Clause as barring such inquiries. And yet that's not the position these students took. That again serves, I think, as a reminder that even members of potentially threatened religious minorities may favor the dangerous space left us by the Religious Test Clause to invoke religion in public, even if it entails the risk of misuse or abuse -- at least provided those individuals begin with an assumption of public engagement rather than of religion as a fundamentally private activity. Of course, this commitment to engagement also entails an obligation to raise one's own voice in the public square, evaluating and sometimes speaking out against the ways in which religion is invoked in public debate; and that's why I've suggestd some standards we might use in this area. I think this kind of obligation is a weighty commitment, but also that it is a fundamental aspect of citizenship, for religious and non-religious individuals alike. I'm glad these students already are on the road to living out that kind of commitment.

Thanks again to my commenters, and to the Volokh Conspiracy gang for serving as gracious hosts.

	[Paul Horwitz (guest-blogging), April 1, 2007 at 10:51am] Trackbacks Final Thoughts on the Religious Test Clause and Judicial Nominations: Thanks again for many interesting comments on my discussion of this article on the Religious Test Clause. Let me add that the comments to my last post may be of special interest to those who are interested primarily in the historical debate, since it contains some citations offered to critique my view that, for many of the framers and ratifiers whose understanding of the Test Clause may be counted as relevant, it would have been highly unlikely that they would have welcomed various non-Christians or non-believers as public office holders. Commenter "cityduck" offers some valuable contrary evidence. My view remains that, taking the evidence as a whole, many of those figures would have agreed to ban religious tests at the federal level, but would not have gone so far as to say that religion must and should be somehow irrelevant at the level of public debate and official deliberation about federal office-holders. Still, cityduck's evidence is well worth reading. I did not intend to throw bombs with this paper: it tries to settle a sometimes heated public debate about the use of religion in judicial nominations and to correct what I took to be the frequent and incorrect invocation of the Religious Test Clause in recent public discussion. It uses that correction as a launching point for a broader discussion of the ways in which We the People, both private citizens and public actors like the President and the members of the Senate, might police the use of religion in public discussion in this and other areas, welcoming its presence while thinking about how to engage in such public discussions with care, consistency, and integrity. I think I did a reasonable job, and the commenters here have generally suggested so -- to the extent of worrying that my narrow approach dampened what might be a hot discussion. And yet, having presented these views in a variety of fora, I'm struck by the occasions on which I have sparked more passionate concerns and disagreements on these issues. I think those occasions say some important things. I'd like to talk about some of those reactions. I've had several different kinds of audiences for this paper, and several different kinds of reaction. Although the comments to my posts this week were generally supportive and always thoughtful, even in disagreement, I first posted these thoughts (on Prawfsblawg) closer in time to the Roberts and Miers nominations, and then the reactions from the general public were often of the blunt, "no test means no test" variety. And yet most people who reacted to this week's posts, including those who disagreed with my reading of the Test Clause, didn't take this line of argument. This suggests a couple of things to me. First, constitutional interpretation is often clumsiest and bluntest when one is most in the thick of an ongoing controversy. At those moments, people are less concerned with maintaining a strong consistency with the approach they take to constitutional interpretation at a moment of repose. Certainly many of the public commentators who spoke out on the Religious Test Clause issue at the time of the nominations were far less concerned with deeper questions of text, history, and structure than they are at other times. They were deeply concerned with defending the Roberts nomination, and so were willing to expand the Test Clause beyond its proper scope, in a way they would not be for other constitutional provisions. When it came time for the Miers nomination, which many conservatives opposed, they were more than willing to argue for a consistent view against the President's invocation of religion in her support, even though, again, it's far from clear that the Religious Test Clause required such a view. It's perhaps an obvious point, but one we are apt to lose sight of at heated moments: we should be wary of those whose approach to interpreting the Constitution changes depending on how strongly they are looking for a particular result in the moment, and far more intent on judging those views for their methodological consistency and integrity. (Of course, this can be true of folks with a variety of different substantive views and political ideologies.) A more interesting set of responses came from those who are openly religious, and here we might crudely distinguish between religious individuals who are committed to the place of religion in the public square, and religious individuals, largely of minority faiths, who mostly fear that any invocation of religion in public debate will be used against religious minorities and cause far more division and bigotry than they think can safely be tolerated. "Public square religionists" were far more likely to accept my thesis, and also far more likely to accept its corollary: that religion's entitlement to invocation in the public square also entails the right to criticize religion and religious individuals or beliefs in the public square. They accepted the possibility of criticism as an acceptable price to pay for the inclusion of religion in public discussion. Others worried that allowing any mention of religion in public debate, and in considering nominations for federal office, will inevitably devolve into religious bigotry, typically against a minority faith; better, for them, to protect religion as a fundamentally private activity, and to erect barriers against its public invocation. I think these individuals were appealing to a reasonable concern, but that protecting religion through privatization is too high a price to pay. In any event, public invocation of religion is inevitable in our society; better, then, to try to craft rules to evaluate such invocations, however imperfect they may be. Finally, let me say that I've been teaching law and religion at Notre Dame Law School this semester, and it's been a wonderful experience, with many thoughtful and engaged students -- predominantly Catholic, most likely, but from a variety of faiths. These students, by and large, seemed to share my intuitions about the Religious Test Clause and the inevitability of religion figuring in the consideration of judicial and other nominees, even though I think I left the discussion sufficiently open-ended that I was not pushing them in this direction. It's especially noteworthy because Catholics have been the most prominent targets of religiously based questioning of various nominees, and so in some ways have the most to gain from a broad reading of the Religious Test Clause as barring such inquiries. And yet that's not the position these students took. That again serves, I think, as a reminder that even members of potentially threatened religious minorities may favor the dangerous space left us by the Religious Test Clause to invoke religion in public, even if it entails the risk of misuse or abuse -- at least provided those individuals begin with an assumption of public engagement rather than of religion as a fundamentally private activity. Of course, this commitment to engagement also entails an obligation to raise one's own voice in the public square, evaluating and sometimes speaking out against the ways in which religion is invoked in public debate; and that's why I've suggestd some standards we might use in this area. I think this kind of obligation is a weighty commitment, but also that it is a fundamental aspect of citizenship, for religious and non-religious individuals alike. I'm glad these students already are on the road to living out that kind of commitment. Thanks again to my commenters, and to the Volokh Conspiracy gang for serving as gracious hosts.