Article VI Debts, Supremacy, Oaths, Religious Tests

Signed in convention September 17, 1787. Ratified June 21, 1788

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

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.

Common Interpretation

Article VI. Debts, Supremacy, Oaths, Religious Tests, Annenberg Classroom

Article VI. Debts, Supremacy, Oaths, Religious Tests, Annenberg Classroom

By Annenberg Classroom

Often referred to as the supremacy clause, this article says that when state law is in conflict with federal law, federal law must prevail. Because of the great number of federal and state laws, many of which deal with the same or similar topics, there have been many lawsuits claiming that state laws conflict with federal laws and are therefore invalid. In these lawsuits, the Supreme Court generally looks at whether Congress has established a national regulatory scheme and if so, states cannot regulate in that area.

The Court also looks at whether the state law directly interferes or is in conflict with federal law. In all of these cases, the supremacy clause ensures that federal law takes priority over, or preempts, state law. The prioritizing of federal over state powers is known as the “doctrine of preemption.”

Article VI also provides that both federal and state officials—including legislators and judges—must obey the U.S. Constitution (state officials have a duty to obey their own state constitutions and laws as well). To ensure freedom of religion, this article ensures that no public official be required to practice or pledge allegiance to any particular religion.

Common Interpretation

The Supremacy Clause

The Supremacy Clause

By Caleb Nelson and Kermit Roosevelt

When the Philadelphia Convention got under way in May 1787, Governor Edmund Randolph of Virginia presented what has come to be known as “the Virginia plan”—a collection of resolutions forming a blueprint for the Constitution. As amended a few days later, one of the resolutions included the following proposal: “the National Legislature ought to be impowered . . . to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.”

At first, supporters of this idea seemed optimistic about its chances. In early June, indeed, Charles Pinckney and James Madison moved to extend the proposed congressional “negative” so as to reach all state laws that Congress deemed “improper.” This motion, however, went down to defeat. The next month, over Madison’s objections, the Convention rejected the narrower version of the power too. In place of the proposed congressional “negative,” the Convention approved a precursor of the Supremacy Clause. That Clause went through various changes in the ensuing months, but the final version says: .

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Instead of giving Congress additional powers, the Supremacy Clause simply addresses the legal status of the laws that other parts of the Constitution empower Congress to make, as well as the legal status of treaties and the Constitution itself. The core message of the Supremacy Clause is simple: the Constitution and federal laws (of the types listed in the first part of the Clause) take priority over any conflicting rules of state law. This principle is so familiar that we often take it for granted. Still, the Supremacy Clause has several notable features.

To begin with, the Supremacy Clause contains the Constitution’s most explicit references to what lawyers call “judicial review”—the idea that even duly enacted statutes do not supply rules of decision for courts to the extent that the statutes are unconstitutional. Some scholars say that the Supremacy Clause’s reference to “the Laws of the United States which shall be made in Pursuance [of the Constitution]” itself incorporates this idea; in their view, a federal statute is not “made in Pursuance [of the Constitution]” unless the Constitution really authorizes Congress to make it. Other scholars say that this phrase simply refers to the lawmaking process described in Article I, and does not necessarily distinguish duly enacted federal statutes that conform to the Constitution from duly enacted federal statutes that do not. But no matter how one parses this specific phrase, the Supremacy Clause unquestionably describes the Constitution as “Law” of the sort that courts apply. That point is a pillar of the argument for judicial review. In addition, the Supremacy Clause explicitly specifies that the Constitution binds the judges in every state notwithstanding any state laws to the contrary.

The Supremacy Clause also establishes a noteworthy principle about treaties. Under the traditional British rule, treaties made by the Crown committed Great Britain on the international stage, but they did not have domestic legal effect; if Parliament wanted British courts to apply rules of decision drawn from a treaty, Parliament needed to enact implementing legislation. The Supremacy Clause breaks from this principle. Subject to limits found elsewhere in the Constitution, treaties are capable of directly establishing rules of decision for American courts.

This aspect of the Supremacy Clause reflected concerns that individual states were jeopardizing the fledgling nation’s security by putting the United States in violation of its treaty obligations. For instance, at the end of the Revolutionary War, Article IV of the Treaty of Peace between the United States and Great Britain had specified that “creditors on either side[] shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted.” Nonetheless, several states enacted or retained debtor-relief laws whose enforcement against British creditors would violate this promise, and British diplomats argued that these violations excused Britain’s own failure to withdraw all armies and garrisons from the United States. The Supremacy Clause responded to this problem: just as state courts were not supposed to apply state laws that conflicted with the Constitution itself, so too state courts were not supposed to apply state laws that conflicted with Article IV of the Treaty of Peace. Indeed, the peculiar wording of the Supremacy Clause—covering treaties already “made . . . under the Authority of the United States” as well as treaties that “shall be made” in the future—was specifically designed to encompass pre-existing agreements like the Treaty of Peace. While modern scholars have debated the circumstances in which treaties should be understood to establish rules of decision for cases in American courts, the Supremacy Clause unquestionably makes such treaties possible.

Under the Supremacy Clause, the “supreme Law of the Land” also includes federal statutes enacted by Congress. Within the limits of the powers that Congress gets from other parts of the Constitution, Congress can establish rules of decision that American courts are bound to apply, even if state law purports to supply contrary rules. Congress also has at least some authority to put certain topics wholly off limits to state law, or otherwise to restrict what state law can validly say about those topics. As long as the directives that Congress enacts are indeed authorized by the Constitution, they take priority over both the ordinary laws and the constitution of each individual state. (During the ratification period, Anti-Federalists objected to the fact that federal statutes and treaties could override aspects of each state’s constitution and bill of rights. But while this feature of the Supremacy Clause was controversial, it is unambiguous.)

In modern times, the Supreme Court has recognized various ways in which federal statutes can displace or “preempt” state law. Some federal statutes include express “preemption clauses” forbidding states to enact or enforce certain kinds of laws. A few other federal statutes have been interpreted as implicitly stripping states of lawmaking power throughout a particular field. But even when a federal statute does not contain an express preemption clause, and even when the statute does not implicitly occupy an entire field to the exclusion of state law, the directives that the statute validly establishes still supersede any conflicting directives that the law of an individual state might purport to supply.

Every year, courts decide an enormous number of cases that involve whether a particular federal statute should be understood to preempt a particular aspect of state law. Often, the key disputes in these cases boil down to questions of statutory interpretation. (If the relevant federal statute includes a preemption clause, what does the clause mean? Should any additional instructions about preemption be inferred? And what is the precise content of all the other legal directives that the statute establishes, whether expressly or by implication?) But apart from disputes about what the relevant federal statute should be understood to say and imply, and apart from any disputes about whether the Constitution really gives Congress the power to say and imply those things, some preemption cases may implicate disagreements about the Supremacy Clause itself. Of course, the basic principle that valid federal statutes preempt conflicting rules of state law is not controversial. But different judicial opinions suggest different views about what counts as a conflict for this purpose, and some of those disagreements may grow out of the Supremacy Clause: while there is no doubt that the Supremacy Clause sometimes requires courts to disregard rules of decision purportedly supplied by state law, there is room for debate about the precise trigger for that requirement.

Matters of Debate

Caleb Nelson Caleb Nelson Emerson G. Spies Distinguished Professor of Law, University of Virginia School of Law

Preemption, Purposivism, and the Supremacy Clause by Caleb Nelson

Just as television coverage of breaking news can “preempt” the programs that would otherwise be airing, so too valid federal statutes can preempt state law that would otherwise apply.

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Kermit Roosevelt Kermit Roosevelt Professor of Law, University of Pennsylvania Law School

The Nation and the States by Kermit Roosevelt

Which comes first, the nation or the states?

Full Text

Matters of Debate

Preemption, Purposivism, and the Supremacy Clause by Caleb Nelson

Preemption, Purposivism, and the Supremacy Clause

By Caleb Nelson

Just as television coverage of breaking news can “preempt” the programs that would otherwise be airing, so too valid federal statutes can preempt state law that would otherwise apply. That is a consequence of the Supremacy Clause, which makes valid federal statutes part of “the supreme Law of the Land” and says that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” But exactly what does it mean to say that federal statutes are “supreme” over state law? Under what circumstances does the Supremacy Clause require judges to disregard otherwise applicable state law because it is contrary to federal law?

The Supremacy Clause definitely does not mean that each state must base all of its own laws on the same policy judgments reflected in federal statutes. For instance, the fact that Congress has chosen to establish federal income taxes, but has mostly refrained from establishing federal sales taxes, does not mean that state legislatures have to make the same choice as a matter of state law. Of course, states cannot exempt people from having to pay federal income taxes as required by federal law. But states do not have to structure their own state tax systems on the same model; if state lawmakers think that sales taxes are better than income taxes, states can fund their state governments that way. Similarly, the fact that Congress has made the possession of certain drugs a federal crime does not prevent states from following a different policy as a matter of state law. While states are not in charge of whether drug possession is a federal crime, they are in charge of whether it is also a state crime.

In these examples, though, the relevant state law does not interfere with the operation of the federal statute. Federal authorities can enforce the federal income tax or federal drug laws without regard to whether state law imposes a state income tax or criminalizes possession of the same drugs.

When application of state law would interfere with the operation of a valid federal statute, modern courts are more likely to conclude that the state law is preempted. Ever since Hines v. Davidowitz (1941), the Supreme Court has sometimes articulated a broad version of this idea.  The majority opinion in Hines arguably suggested that state law is preempted whenever its application “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” behind a valid federal statute, and later cases have repeated this formulation.

I do not think that the Supremacy Clause itself compels this understanding of the preemptive effect of federal statutes. In my view, the fact that valid federal statutes are “the supreme Law of the Land” and “the Judges in every State shall be bound thereby” means that the judges in every state must follow all legal directives validly supplied by those statutes. In any case where following some aspect of state law would require disregarding a legal directive validly supplied by a federal statute, judges should conclude that the state law is preempted; if judges have to choose between applying state law and applying a legal directive validly supplied by a federal statute, the Supremacy Clause gives priority to the federal law. But unless state law contradicts federal law in this sense (so that judges must choose which one to follow), nothing in the Supremacy Clause prevents judges from following both.

When the Supremacy Clause was adopted, judges had long been using an analogous test to decide whether one law repeals another. Ordinarily, statutes enacted by the same legislative body are cumulative: if a legislature enacts two statutes at different times, and if Statute #2 does not say that it repeals Statute #1, courts normally will apply both. But that is not possible if the two statutes supply contradictory instructions for the same issue. With respect to statutes enacted by a single legislature, courts traditionally have handled such contradictions by giving priority to the more recent statute. With respect to conflicts between state and federal law, the Supremacy Clause establishes a different hierarchy: federal law wins regardless of the order of enactment. But this hierarchy matters only if the two laws do indeed contradict each other, such that applying one would require disregarding the other. In my view, then, the trigger for preemption under the Supremacy Clause is identical to the traditional trigger for repeals. In support of this conclusion, there is evidence that the Supremacy Clause was drafted and discussed in light of existing legal doctrines about repeals.

Even if I am right about the Supremacy Clause’s test for preemption, though, applying that test in particular cases requires courts to interpret the relevant federal statutes to identify all the legal directives that those statutes establish. That is a more contentious project than nonlawyers might assume. Federal statutes often are understood to imply some things that they do not say on their face, and legal directives that are established by implication can be just as valid as other legal directives. Different judges, however, have different views about the circumstances in which courts can properly read things into federal statutes (and, perhaps, about the extent to which courts can properly articulate subsidiary rules designed to help implement those statutes). The competing schools of thought include one approach called “textualism” and another called “purposivism.”

The Supreme Court issued its opinion in Hines during the heyday of purposivism, and there is reason to think that Hines’s emphasis on Congress’s “purposes and objectives” was more about statutory interpretation than about the basic test for preemption established by the Supremacy Clause. In keeping with that idea, the modern Supreme Court tends to portray the Hines formulation as a guide to the “pre-emptive intent” that courts should attribute to particular federal statutes. On this way of thinking, the Hines formulation reflects a presumption about Congress’s likely desires. The idea is that when Congress enacts a federal statute, Congress presumably wants to preempt state laws that would “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” and courts should give effect to this presumed intention.

If, as a matter of statutory interpretation, a particular federal statute implicitly forbids states to enact or enforce laws that would interfere with specified federal purposes, and if Congress has the constitutional power to impose this restriction on state law, then the Supremacy Clause would require courts to pay attention. After all, if a federal statute validly strips states of the power to enact or enforce certain kinds of laws, a court that gave effect to such a state law would be disregarding a valid federal directive, in violation of the Supremacy Clause. Considered as a principle of statutory interpretation, then, the Hines formulation can co-exist with my understanding of the Supremacy Clause.

Still, the Hines formulation may not be a very good principle of statutory interpretation. To begin with, many textualists doubt that courts are in a good position to identify the full purposes and objectives behind any particular federal statute. In any event, members of Congress would not necessarily want to run roughshod over all state laws that serve competing goals. To take a simple example, a federal statute that exempts multinational companies from certain federal taxes might have the purpose of luring business to the United States, but courts should not automatically infer that Congress is forbidding states to enforce their own generally applicable tax laws against such companies. Likewise, a federal statute that gets rid of prior federal regulations in a particular area might be designed to reap the benefits of the free market, but courts should not automatically infer that Congress must have wanted to prevent individual states from enacting any regulations of their own in the same area.

In the past few decades, the Supreme Court has become somewhat more sensitive to these points. As early as 1992, Justice Kennedy wrote that “[o]ur decisions establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” More recently, Chief Justice Roberts has quoted this statement approvingly, and Justices Alito and Sotomayor have both quoted Chief Justice Roberts’s quotation. Meanwhile, Justice Thomas has rejected the Hines formulation entirely.

At the very least, the Supremacy Clause does not itself require judges to conduct the analysis described in Hines and its progeny. In my view, that analysis is appropriate only to the extent that individual federal statutes are properly interpreted to call for it.

 Some of the arguments presented here initially appeared in Preemption, 86 Virginia Law Review 225 (2000).

Caleb Nelson Caleb Nelson Emerson G. Spies Distinguished Professor of Law, University of Virginia School of Law

Matters of Debate

The Nation and the States by Kermit Roosevelt

The Nation and the States

By Kermit Roosevelt

Which comes first, the nation or the states? Who is the ultimate sovereign in our American system—a national people represented by the federal government, or the several states considered as distinct political entities?

This is perhaps the most basic question about the U.S. Constitution and the system it created. The relationship between the states and the federal government is one of the most fundamental fault lines of constitutional theory. In many of its aspects, the relationship is deeply contested, and no settled answer exists. There are two very different ways of understanding America. The nationalist vision imagines a single national people—We the People—coming together to create a government that represents all of them and is superior to—in a real sense, more American than—the individual states. The federalist vision imagines states delegating some of their powers to a federal government created to act as their agent in certain matters.

Some of the questions thrown up by the tension between these two visions have been resolved. It is settled now that the U.S. Supreme Court has the power to reverse the decisions of state supreme courts in appropriate cases, and that state courts must accept U.S. Supreme Court interpretations of the Constitution and federal law. It is settled that states cannot nullify federal laws—though constitutional amendments giving them such power have been proposed.

In other areas of law, though, the struggle persists. The Supreme Court is deeply divided over questions about the limits on Congress’ legislative powers and about the extent to which states can assert sovereign immunity as a defense to claims under federal law. In these areas, and others, the two visions continue to clash.

Each can point to some support in the revered figures of history and our founding documents. Abraham Lincoln, in the Gettysburg address, dated the birth of the nation to 1776 and the Declaration of Independence, not 1788 and the Constitution. He consistently argued that the nation preceded the states, writing to Congress in 1861 that “The Union is older than any of the States and, in fact, it created them as States.”

But was Lincoln right? It is true that the states acted collectively through a Congress before independence, but the Declaration of Independence talks of States taking their rightful place in the world, not of a single nation. Both the title and the last paragraph refer to “united States”—with the lowercase U suggesting that the phrase is not the name of a nation but simply a collection of, in the Declaration’s words, “Free and Independent States.”

The Constitution, likewise, tantalizes the supporters of each vision. The Preamble speaks of “We the People of the United States.” The U is capitalized, and that sounds like a single national body—until you dig deeper and learn that the original draft listed all thirteen states (“We the People of the States of New-Hampshire, Massachusetts, Rhode Island and Providence Plantations . . . ”) with the list eventually omitted for reasons of style and to avoid embarrassment if some states rejected the Constitution (as, indeed, Rhode Island initially did). Federalists, meanwhile, can point to the fact that in the Constitution, the phrase “United States” is always treated as a plural noun.

History gives us an answer of a sort. It shows a consistent flow of power from the states to the federal government—episodically, and typically in the face of at least temporary resistance by the Supreme Court, but consistently. This happens as a result of constitutional amendments—most notably the Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth), which both granted the federal government new powers and imposed new limits on the states, but also the Progressive-era amendments (the Sixteenth, Seventeenth, Eighteenth, and Nineteenth). And it happens as a result of Supreme Court acquiescence to expansive congressional claims of power, as happened during the time of the New Deal and also the Warren Court era.

Americans, in response, have generally changed their minds about the relative significance of the nation and the states. Most people consider their status as American citizens to be much more important than their state citizenship, and we now use “United States” as a singular noun. Still, even if the battle lines have shifted, the conflict between federalism and nationalism continues.

How does the Supremacy Clause relate to this persistent tension at the heart of the Constitution? It gives us at least one clear instance where nationalist values prevail. Within the scope of its powers, the federal government is supreme over the states. (Even here, though, people disagree—both about what the scope of those powers is, and about how to decide when an exercise of federal authority should displace state law.) But does the Supremacy Clause hold a general lesson about the respective status of the states and the federal government, pointing to broader federal supremacy? Or does it suggest to the contrary that whenever federal supremacy is not explicitly noted it does not exist? As always, the Constitution leaves some questions unanswered, open for debate and resolution by the American people.

Kermit Roosevelt Kermit Roosevelt Professor of Law, University of Pennsylvania Law School

Common Interpretation

The No Religious Test Clause

The No Religious Test Clause

By Alan Brownstein and Jud Campbell

After requiring all federal and state legislators and officers to swear or affirm to support the federal Constitution, Article VI specifies that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This prohibition, commonly known as the No Religious Test Clause, banned a longstanding form of religious discrimination practiced both in England and in the United States. In doing so, it provided a limited but enduring textual constitutional commitment to religious liberty and equality that has influenced the way Americans have understood the relationship between government and religion over the last two centuries.

In England, religious tests were used to “establish” the Church of England as an official national church. The Test Acts, in force from the 1660s until the 1820s, required all government officials to take an oath disclaiming the Catholic doctrine of transubstantiation and affirming the Church of England’s teachings about receiving the sacrament. These laws effectively excluded Catholics and members of dissenting Protestant sects from exercising political power. Religious tests were needed, William Blackstone explained, to protect the established church and the government “against perils from non-conformists of all denominations, infidels, turks, jews, heretics, papists, and sectaries.”

At the time the United States Constitution was adopted, religious qualifications for holding office also were pervasive throughout the states. Delaware’s constitution, for example, required government officials to “profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost.” North Carolina barred anyone “who shall deny the being of God or the truth of the Protestant religion” from serving in the government. Unlike the rule in England, however, American religious tests did not limit office-holding to members of a particular established church. Every state allowed Protestants of all varieties to serve in government. Still, religious tests were designed to exclude certain people—often Catholics or non-Christians—from holding office based on their faith.

Today, nondiscrimination is an essential part of religious freedom, and it therefore may seem odd that the state laws and constitutions simultaneously imposed religious tests while also professing to protect religious liberty. Indeed, some critics, such as Thomas Jefferson, condemned religious tests as repugnant to freedom of conscience. But many Americans in the late 1700s and early 1800s apparently did not view religious tests and religious freedom as inherently contradictory. Some argued that religious tests did not violate freedom of religious conscience because no one had an obligation or entitlement to hold public office. Office-holding, in other words, was a privilege, not a right. Americans thus allowed minority religions to practice their faith while insisting that government power must be reserved for and could only be trusted to Protestants.

Notwithstanding this almost unanimous state consensus, the Framers of the federal Constitution prohibited religious tests for federal office-holding. It is not clear why they did so. There is little record of debate about this provision or discussion as to its merits at the constitutional convention. We do know that the ban on religious tests was controversial during the ratification debates, sometimes evoking passionate criticism of its inclusion in the Constitution. It was elementary to some opponents of the ban that “a person could not be a good man without being a good Christian.” Even as prominent a proponent of ratification as John Jay had demonstrated strong support for the use of religious tests within his own state.

Supporters of the Constitution defended the prohibition against test oaths as advancing religious freedom and protecting less politically powerful faiths against discrimination. They also argued that laws requiring religious tests were futile. Men without principles would easily evade the laws’ purpose through sham compliance while honest men who followed the dictates of their conscience would be barred from office. The difficult question was how these arguments could be reconciled with the widespread acceptance of religious tests throughout the states.

There is very little case law interpreting the No Religious Test Clause. The foundational ideas of religious liberty and equality, which are intrinsic to the rejection of religious tests, have been developed far more fully in cases interpreting the Free Exercise Clause and the Establishment Clause of the First Amendment. Thus, the Supreme Court has never held that the Clause applies to state as well as federal office-holding. In other words, unlike most parts of the Bill of Rights, the ban on religious tests has not been formally applied against the states (or “incorporated”) under the Fourteenth Amendment. But in Torcaso v. Watkins (1961), the Supreme Court unanimously held that religious tests for state office-holding violate the religion clauses of the First Amendment. “[N]either a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion,’” the Court declared. “[N]either can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”

In a related case, McDaniel v. Paty (1978), the Supreme Court invoked the First Amendment to strike down state laws prohibiting clergy from holding office. Such a disqualification from holding office, the Court explained, unacceptably abridged religious liberty. Here again, the fact that these religion-related exclusions were adopted by many states both before and after the Constitution’s ratification did not persuade the Justices that such burdens on religious liberty were permissible.

As is true of virtually all constitutional provisions, the No Religious Test Clause in Article VI only restricts governmental action. Private citizens do not violate the Constitution if they vote against a political candidate because of his or her religion. A harder question, which has provoked considerable contemporary debate, is whether the Clause extends beyond a ban against oaths and prohibits government officials from taking the religious views of an individual into account in selecting or confirming that individual for a federal position—such as an appointment to the Supreme Court.

Matters of Debate

Alan Brownstein Alan Brownstein Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, University of California Davis School of Law

Religious Liberty and Equality in a Living Constitution by Alan Brownstein

The No Religious Test Clause provides a foundation for America’s constitutional commitment to religious liberty and equality.

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Jud Campbell Jud Campbell Executive Director of the Stanford Constitutional Law Center, Stanford Law School

Confronting Constitutional Change by Jud Campbell

Modern interpreters give little attention to the No Religious Test Clause, but that is a shame. As Alan nicely points out in his commentary, the early history of oaths and religious tests offers useful case studies for thinking about shifts in constitutional meaning over the past two centuries.

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Matters of Debate

Religious Liberty and Equality in a Living Constitution by Alan Brownstein

Religious Liberty and Equality in a Living Constitution

By Alan Brownstein

The No Religious Test Clause provides a foundation for America’s constitutional commitment to religious liberty and equality. While limited in scope, the principles of freedom of conscience and anti-discrimination that animate it have developed and expanded over time. This has happened both in the case law interpreting the Free Exercise and Establishment Clause of the First Amendment and in the political sensibilities of the American people. The core message here is simple and basic. In this country, we do not bar members of minority faiths from holding political office or condition participation in public service on a person’s willingness to affirm religious teachings that may be foreign to his or her beliefs.

The No Religious Test Clause is also important because it informs our understanding of how courts should interpret the Constitution. Some scholars and jurists contend we should interpret constitutional provisions relating to religion by looking at the church-state interactions that were prevalent at the time the Constitution was drafted and ratified. Thus, it is argued, if government officials promoting religion through sectarian public prayers was generally accepted 220 years ago, then it is highly unlikely that the Establishment Clause of the First Amendment was intended to prohibit this practice.

As the history of the No Religious Test Clause demonstrates, this kind of an analysis has inherent difficulties. Sometimes what the Constitution requires challenges the accepted practices of the time. There was widespread acceptance of religious tests in the states at the time the Framers drafted Article VI. Surely, it makes little sense to contend that the No Religious Test Clause cannot prohibit religious tests—what its explicit language bans—because such tests were commonly imposed by states on office holders. Similarly, many states prohibited clergy from holding public office in the late 1700s. If the interpretation of the religion clauses of the First Amendment is frozen by what was acceptable to Americans at that time, then longstanding precedents like McDaniel v. Paty (1978), which held unconstitutional a Tennessee statue barring “Minister[s] of the Gospel or priest[s] of any denomination whatever” from serving as legislators, are wrongly decided.

One reason it is difficult to limit the meaning of constitutional provisions relating to religion by looking at accepted government activities in our early history is that the interpretation of the rest of the Constitution has not remained static. For example, from the 1780s to the 1950s, constitutional law distinguished between rights and privileges. Public service was a privilege, not a right. Accordingly, Americans could be barred from being police officers or holding other government positions because they criticized the government or expressed unpopular viewpoints. Freedom of speech did not protect individuals from being denied privileges such as a government position. Under this analysis, Americans in the late 1700s might plausibly think that religious tests for public office did not abridge anyone’s right to religious freedom. It simply limited their access to a privilege—holding public office—which no one had a right to possess.

Over the last 50 years, however, courts have consistently rejected this distinction between rights and privileges. In numerous decisions, courts held that Americans cannot be denied the opportunity to hold a public office or job because the government disapproves of the way they have exercised their fundamental rights, such as freedom of speech. In light of this new constitutional understanding, it no longer makes much sense to argue that religious tests do not burden the right to religious liberty. There are other reasons why early American history may not provide dispositive limits on constitutional doctrine relating to religious liberty and equality. Today, we have a much more robust understanding of both liberty and equality rights that we did in 1791. Freedom of speech and association are much more rigorously protected now than they were 200 years ago. Rights of privacy and autonomy such as the right to marry were not recognized as constitutional rights until recently. Until the adoption of the Fourteenth Amendment in 1868, the Equal Protection Clause, the primary vehicle for guaranteeing equality rights in the Constitution, was not part of the Constitution and the Bill of Rights was not yet applicable to the states. In a constitutional scheme in which so many other rights receive greater attention and respect, one may reasonably argue that religious liberty and equality rights must develop and evolve as well.

A final reason why religious tests and other forms of religious discrimination and favoritism are less acceptable today is that the religious demographics of the country have changed dramatically. Two hundred years ago, America was overwhelmingly a homogenous Protestant country. Preferences for Protestant beliefs included almost everyone who counted. (Native Americans and slaves did not count.) Excluded minorities were largely invisible to the majority. Today, the United States has much greater religious diversity. Millions of Catholics, Jews, Hindus, Moslems, Buddhists and members of other faiths live here as do millions of non-religious Americans. Religious tests and preferences do not unify our society today. They risk tearing it apart.

While the core meaning of the No Religious Test Clause has strong support today, there are difficult unanswered questions about the scope of this provision. Clearly, no one can be required to swear or affirm a religious belief as a condition to holding office. It is less certain whether individuals can be denied a government position on the grounds that their religious beliefs disqualify them from serving in a particular position. The idea that an individual should not be appointed to the Supreme Court because he is a Jew or she is a Catholic easily can be characterized as an impermissible religious disqualification for holding office. Is it unconstitutional, however, to refuse to appoint a religious pacifist to a leadership position in the Department of Defense or to reject a Supreme Court nominee because he is religiously opposed to abortion or same-sex marriage or holds strong religious beliefs on some other issue that will be adjudicated by the Court? When religious beliefs will influence official conduct, is it impermissible to consider religion in appointing government officials to office? These questions remain the subject of contemporary debate.

Alan Brownstein Alan Brownstein Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, University of California Davis School of Law

Matters of Debate

Confronting Constitutional Change by Jud Campbell

Confronting Constitutional Change

By Jud Campbell

Modern interpreters give little attention to the No Religious Test Clause, but that is a shame. As Alan nicely points out in his commentary, the early history of oaths and religious tests offers useful case studies for thinking about shifts in constitutional meaning over the past two centuries. I’ll focus here on two constitutional provisions that intersect with the No Religious Test Clause: the First Amendment and the Oath Clause.

The First Amendment

The Supreme Court’s interpretation of the First Amendment in Torcaso v. Watkins (1961) effectively made superfluous the Article VI ban on religious tests. But that overlap was hardly apparent at the Founding.

First, consider the Establishment Clause. Even without the No Religious Test Clause, the Establishment Clause would have prohibited sectarian discrimination in office-holding requirements. But many Founders may not have viewed a non-sectarian religious test—a requirement of theism or Christianity, for instance—as a violation of the Establishment Clause. Most calls for federal disestablishment, after all, took the form of Virginia’s proposal that “no particular religious sect or society ought to be favored or established by Law in preference to others.” The idea of removing religion entirely from the public sphere was far more radical than simply banning sectarian discrimination.

Second, although the Free Exercise Clause certainly prohibited deprivations of so-called “natural rights” (like life, liberty, or property) based on someone’s religion, it may not have originally affected the availability of civil privileges like office-holding. As Massachusetts jurist Samuel Wilde put it in 1821, a religious test “does not interfere with the rights of conscience.—No person has any conscience about becoming a Legislator. He is not obliged to accept of office, and he has no right to claim it.” Indeed, as Alan and I point out in our joint statement, most state constitutions at the Founding simultaneously recognized the inalienable right of free exercise and imposed a non-sectarian religious test for office. The coexistence of these provisions highlights a distinction between natural rights and civil privileges that has blurred considerably in modern constitutional law.

In sum, the No Religious Test Clause imposed a constitutional restriction that was not necessarily implicit either in the Establishment Clause or in the Free Exercise Clause. Though uncontroversial today, the Supreme Court’s decision in Torcaso thus reflected a likely departure from the First Amendment’s original meaning.

The Oath Clause

A second way that the No Religious Test Clause exposes distance from our constitutional past is through the inherent religiosity of oath-taking at the Founding. An oath, as Oliver Wolcott explained to his colleagues in the Connecticut ratification convention, was “a direct appeal to that God who is the avenger of perjury” and was thus “a full acknowledgment of his being and providence.” The oath, in other words, was itself a religious instrument. (Moreover, affirmations were then available only to individuals, like Quakers, who had religious scruples against swearing.)

Consequently, by requiring all officers to take an oath, the Constitution implicitly created a non-sectarian religious hurdle for office-holding—albeit one that lacked any external enforcement mechanism. As James Madison asked rhetorically in a letter to Edmund Pendleton, “Is not a religious test as far as it is necessary, or would operate, involved in the oath itself?” Indeed, the inherent religiosity of oath-taking led South Carolina’s ratification convention to propose revising the No Religious Test Clause to say that “no other religious Test shall ever be required.” Roger Sherman of Connecticut commented that this proposal was “ingenious” but unnecessary because “as it now stands the effect will be the same.”

In modern law, by contrast, oaths are not necessarily religious, and affirmations are not reserved for religious objectors. To be sure, individuals can say “so help me God” at the end of their oaths if they choose, but oaths have lost their inherent religiosity, just as the term “marriage” has lost its previously inherent gendered meaning. Nobody today thinks twice about the validity of an oath taken by an atheist. In fact, it would violate the Supreme Court’s ruling in Torcaso to limit civic participation on the basis of religious disbelief. As so often happens, cultural shifts have profoundly affected the way that we read the Constitution.

Jud Campbell Jud Campbell Executive Director of the Stanford Constitutional Law Center, Stanford Law School