[Paul Horwitz (guest-blogging), March 26, 2007 at 11:00am] Trackbacks
On Religious Tests and Judicial Nominations:

Thanks for much to Eugene and the gang for inviting me to discuss my recent paper, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations. (The link is to the SSRN version; the final version is available on the usual law review databases.) I've already benefited immensely from the comments to Eugene's introduction, and hope I can enjoy further discussion with the vast universe of VC readers out there. I might add that this project started out as a series of posts on my usual place of bloggage, Prawfsblawg.

It might be appropriately modest to start with what a commenter has already observed: "I never cease to be amazed at how big legal-academic reputations can be built on restating the obvious." Well, I'm honored to be counted -- for the first time, I'm pretty sure -- as having a "big legal-academic reputation." (I thought I was just known as that puckish, handsome devil with a one-day win record on Jeopardy!) But of course the commenter has said something perfectly true about much legal scholarship; indeed, I'd be remiss if I didn't add that my own article builds on a superb piece by my current Notre Dame colleague, Gerard Bradley, whose article (at 37 Case W. L. Rev. 647 (1986-87)) is essential reading. I, too, think there is a touch of the obvious to the historical aspect of my discussion, although I hope I've extended the discussion beyond that in useful ways. But assuming the obviousness of my conclusions for the sake of argument, two interesting questions arise: 1) If my conclusions are "obvious," why did so many intelligent people reach the opposite conclusion in the course of debates over a variety of recent judicial nominations, including those of Judge Pryor and Chief Justice Roberts and the abortive nomination of Harriet Miers? 2) Why does my conclusion continue to provoke such fierce reactions, from both sides of the usual left-right or religious-secular divides? Why is the "obvious," if that's what it is, so threatening?

That's what I hope eventually to discuss this week. Today, I'll simply offer some introductory (and lengthy; forgive me) remarks on my conclusions about the history and meaning of the Religious Test Clause. Subsequently, I'll argue that broader reasons support this conclusion as well; and, having concluded that the Constitution leaves us with relatively few restrictions in this area, I'll offer some ways we might construct our own standards for judging public rhetoric involving religion in the course of debating judicial nominations -- and perhaps far beyond that. In the course of responding to comments, I hope to also offer some thoughts on the implications of these questions for the treatment of religion in public debate, and more broadly on the ways in which the Constitution is used and misused in public dialogue.

So let me offer a bite-sized version of my historical conclusions. The Religious Test Clause is a part of Article VI of the Constitution. After requiring all state and federal office-holders to take an "Oath or Affirmation, to support this Constitution," it adds: "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (Note that the Test Clause, unlike the Oath Clause, appears to apply only to federal office-holders.) What does this clause mean? Especially in light of the recent judicial nomination controversies, what does it forbid and what does it allow?

In looking at the history, I've drawn on what I consider four central elements of that history. The first is that the framers and ratifiers of the Religious Test Clause had a specific historical evil in mind when they crafted the Clause: that set of formally imposed oaths and very closely allied practices that were used to restrict office-holders in England to those willing to follow the doctrines of the established church. Second, we must consider the enforcement device by which these tests were imposed: the swearing of an oath, a device by which an individual risked his eternal soul or earthly honor should he swear falsely. The importance with which the members of the founding generation took oaths and the importance of their honor cannot be overstated. Well, okay, technically it can; but it shouldn't be lightly understated. The fact that our own generation may take such things as oaths and honor less seriously may point to the relatively reduced importance of the Test Clause today, but it should not obscure the very different perception that earlier generations would have had about the importance of such matters.

Third, and as some commenters have already noted, despite the framers' and ratifiers' willingness to ban religious tests at the federal level, such tests were rife at the state level, before, during, and after the ratification of the Religious Test Clause. We might read that fact as having purely jurisdictional significance: the ratifiers were willing to see such a test at the federal level but not the state level. But I think it also adds to our understanding of the federal clause. It makes us understand just how revolutionary the federal clause was (a point several commenters have already recognized), and that may lead us to favor a somewhat narrow meaning for the clause. We might be more inclined to read the Clause as focusing more specifically and narrowly on the kinds of historical evils it was aimed against, rather than lightly assuming that, to quote Laurence Tribe, the framers and ratifiers were moving to "prioritize[] the secular over the religious in the [federal] public realm." Finally and relatedly, I point to the fact that, as the historical record makes clear, notwithstanding the Clause, the founding generation widely agreed that moral character was highly relevant to the holding of federal public office -- and for many or most of these individuals, moral character was largely synonymous with religious character. Whatever else they may have meant by the Clause, it is not likely they thought that those who nominated and approved such office-holders were required to treat religion as a forbidden or irrelevant factor.

What conclusion do I draw from all these factors, read together as holistically and as reasonably as I can? It is that the Religious Test Clause is, to use a phrase of Cass Sunstein's, "deep but narrow." It bars the formal imposition of formal test oaths (and, perhaps, some other formal tests) that would restrict putative federal office-holders on the basis of their religion. And it does nothing more -- although to put it that way may lead readers today to ignore just how important and radical even this step was.

So, to end today's post on what I hope is a provocative note, the Religious Test Clause imposes virtually no restrictions on the kind of conduct we saw during the recent debates over particular judicial nominees -- or, what is perhaps more important, on the kind of conduct we will likely see with respect to future nominees. On a constitutional level, the individual members of the Senate were free, if they chose, to question Bill Pryor, John Roberts, and others on their "deeply held views" -- and would have been equally entitled to question them directly, and hostilely (or approvingly), on their religious views. They would similarly have been entitled to vote against these nominees if they were concerned about the relationship between their religious views and their future conduct in judicial office -- or, indeed, to vote against them (or for them!) more directly on the basis of their religious views. And if President Bush promoted Harriet Miers on the basis of her religion -- indeed, if he chose her precisely because of her religion, and perforce disqualified other nominees because of theirs -- then he did nothing wrong, constitutionally speaking. I am not saying any of this conduct would be morally or politically right, although it is not clear to me that all of this conduct would necessarily be wrong. I am saying it was utterly constitutional, at least as far as Article VI. The writ of the Religious Test Clause simply does not run this far.