Why Are They Even Talking About This?

by Cliopatria

Would someone please remind the White House, Harriet Miers's supporters, and her critics in the religious right of Article VI, Section 3, of the Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

I take that to mean that, whatever Harriet Miers's religious affiliations, attitudes, or beliefs may be, they neither qualify her for nor disqualify her from holding public office and that, therefore, the whole conversation going on between the White House and the religious right violates the fundamental law of the land.

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Robert KC Johnson - 10/9/2005

There's also a contradiction here in the White House argument--since during the Roberts hearings, the W.H. argued that it would be inappropriate for Dems to speculate that Roberts' religion might influence his opinions. That's a reasonable (though I think incorrect) argument, but having made it, it's hard to turn around now and say that it's appropriate for Repubs to speculate how Miers' religion might influence her opinions.

Rebecca Anne Goetz - 10/9/2005

In the eighteenth century this probably did refer to a British-style test. The British Test Acts generally required that one reaffirm one's commitment to King and Anglican church for public service of any kind (I have copies of several Virginia iterations). So I think the real question here is between strict and not-so-strict constructionists. Sure, no one is applying a test for Harriet Miers. She need not swear any oaths. (Although, and I am being a little tongue-in-cheek here, but not too much, it isn't out of the realm of possibility that she signed that Republican loyalty oath people were being asked to sign at Bush campaign events.) But some might say that the spirit of the law would run against holding Harriet Miers' envangelical Protestantism as a qualification (which is certainly what the White House is doing in its conversations with Dobson et al.)

Ben W. Brumfield - 10/9/2005

I'm not so sure. In fact, I submit that requiring her to state her opinion of the doctrine of Transubstantiation under oath would still not be a violation of the clause, so long as an affirmation or rejection of that doctrine was not required of her.

This would obviously be a dreadful state of affairs, but we're talking about constitutionality rather than desirability here.

Ralph E. Luker - 10/9/2005

That may very well be, Ben. John F. Kennedy certainly felt obliged to address the issue. I've asked Eugene Volokh to comment on it. At the least, I'd think that any questions about the matter at her confirmation hearings could risk violating this proviso.

Ben W. Brumfield - 10/9/2005

Surely the "no religious Test" language is a direct reference to the Test Act and not some sort of blanket prohibition on discussing a candidate's religion.