Paul Horwitz's latest paper, "Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations," is available on SSRN, and is well worth a read. I heard Paul give this paper at the AALS -- at a panel on "Religion, Division, and the Constitution." Here is the abstract:
The Religious Test Clause of the United States Constitution states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States". Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored - until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations - the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers - have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally.
This article, a contribution to a Symposium on "Religion, Division, and the Constitution," is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong.
I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in the Constitution.
Although the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process, nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate, and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations. The article thus offers several principles of "constitutional etiquette" that might guide our understanding of the sound use of religion in this context, and measures the recent nomination controversies against these standards. It concludes that even with these criteria in place, the invocation of religion in judicial nominations, as elsewhere, may lead to more rather than less division in our national politics. But the price is well worth paying, if our public discussions become richer and deeper as a result.
Here is more -- from the blogosphere -- by Paul about the issue.
The Seattle Post-Intelligencer is reporting, "Yale professor Jaroslav Pelikan, one of the world's foremost scholars of the history of Christianity, has died of lung cancer, his son said Monday. He was 82.
Pelikan wrote more than 30 books, using sources in nine languages and dealing with literary and musical as well as doctrinal aspects of religion."
I thought Wheaton College looked bad for firing a professor who became Catholic. Now Patrick Henry College has fired a professor for writing an article stating that:
"A common misconception among American evangelicals, and one that cannot be supported by the Scriptures themselves, is that the Bible is the only source of truth," the article began. "We argue that this misconception amounts to a blasphemous denial of Christ's words in Matthew 5 that 'he sends rain on the just and the unjust.'"
The 900-word article argued that "a Christian must refuse to view special and general revelation as hostile to one another. Nor should he hesitate to learn from a pagan. There is much wisdom to be gained from Parmenides and Plato, as well Machiavelli and Marx."
The school claimed that the article "diminishes the import of Scripture." Apparently when the school's namesake made his famous quote about liberty, he was referring only to the non-academic kind.
Rob
