The No Religious Test Clause and the Constitution of Religious Liberty: A Machine that Has Gone of Itself
Case W. Res. L. Rev. 37 (1986): 674
Notre Dame Law School Legal Studies Research Paper No. 1758
75 Pages Posted: 15 Aug 2017
Date Written: 1986
The article VI ban on religious tests for federal offices is the sole provision on the topic of religion in the original Constitution. Since the seminal Everson decision in 1947 the courts and commentators have labored mightily to craft a thoroughgoing constitutional philosophy of church and state, in recognition of the profoundly problematic relationship between religion and law in our society. Yet none has looked carefully at the test clause for guidance. This Article does just that.
Professor Bradley argues that notwithstanding the complete absence of attention to article VI, its story tells us all we need to know about the appropriate constitutional philosophy of religion: there is none. Instead, the test ban provides the design for a machine of religious liberty that has gone of itself for two hundred years.
Among the ever-multiplying curiosities of the Supreme Court's church-state decisions is the near ubiquity of the evidentiary rule of "Inverse Proportion." That maxim provides that the intellectual breadth, societal importance, and case-resolving prowess of a constitutional principle be directly, but contrarily, related to the evidence supporting judicial election of it for constitutional enshrinement. Imagine a triangle perched on one of its points—or Jackie Gleason standing on his head. You are now able to intuitively apprehend the rule's substance. A first concrete illustration: No ordering principle is more widely cited than the "wall of separation" between the realms of religion and government. First deployed in 1878 by the Supreme Court to seal the fate of a convicted Mormon polygamist, the "wall" metaphor lay dormant until 1947's seminal Everson v. Board of Education opinion, where it capped the Court's Olympian pronouncements on the meaning of nonestablishment. It has been a mainstay of the law ever since. Some people may therefore have been surprised by the Justices' 1985 admission that the phrase derives neither from the constitutional text, nor from its structure, nor from the contemporaneous understanding of those who created it. Rather, it stems from a single letter by Thomas Jefferson to a community of Connecticut Baptists, which was written more than a decade after the first amendment's birth. Another illustration of the Inverse Proportion rule is found in Everson. There is no more important principle in church-state law than Everson's proscription of governmental encouragement of religion, even where the state aid does not discriminate among faiths. Arguably, the entire nonestablishment opus is little more than an excruciatingly belabored footnote to this part of Everson. Yet like the "wall" metaphor, the no-aid principle is not traced to text or structure, or to the history of the first amendment. Instead, the Everson opinion championed the views of two men—Madison and Jefferson—concerning a Virginia imbroglio over forcing Christians to pay their ministers' salaries. Not to put too fine a point on it, the recent inclination of some Justices—especially Chief Justice Rehnquist—to gauge the constitutionality of church-state activities like nativity scenes, legislative chaplains, and public school prayer by appeals to "tradition" (that is, whether the "Framers" countenanced a similar endeavor) observes the law of Inverse Proportion. To be sure, no ambitious "norm" is derived from scant evidence, but this decisionmaking methodology does not even purport to inquire into the meaning of the constitutional text or structure. Furthermore, a volatile contemporary issue like school prayer is evidently to be validated by the fact that George Washington preached a sermon on Thanksgiving Day, 1789.
No doubt there is at least the usual ration of judicial willfulness at work here. So it is easy to observe, as Justice Brennan has, that the appeal to "tradition" probably covers for a favored political agenda. So it might. But, one must still insist that there is no necessary correlation between slender justification and doctrinal indeterminacy. Put differently, principles which are crisp and clear enough to constrain political predispositions may well be derived from the flimsiest evidence. And however controversial, relying upon ancient missives for the resolution of vexing modern problems is hardly a pipe dream. Fundamentalists do it with Paul's Epistles all the time.
Neither is the indeterminacy of the justificatory process itself the real culprit here. True, flaccid standards of historical proof can not effectively ground even an intellectually honest and politically neutral search for constitutional principles for the simple reason that almost any principle may be justified. Therefore, almost none can be excluded, so long as a letter by one "Framer" suffices. Madison opposed "state aid to religion," as the popular and judicial conceptions have it. Is it not enough to stymie analysis to observe that Washington favored it?
Keywords: constitutional history, religious liberty, pluralism
JEL Classification: K10
Suggested Citation: Suggested Citation