The Religious Test Clause
Bill Fortenberry
Ever since the Constitution was first submitted for
ratification, the final clause in Article VI has been a matter of strong
contention among Americans. That clause, known as the religious test
clause, simply states that “no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States.” It
is frequently claimed that this clause represents the desire of the founding
fathers to keep religion out of the government and to establish a secular
nation. But is that really how this phrase was intended to be used?
To understand the true purpose of the religious test clause, we must hearken back to the Corporation Act of 1661. This was the first of three Test Acts which were implemented in England and which remained in effect until 1828. Under these acts, no one could hold office in England unless he swore an oath of fealty not to God but rather to the doctrines of the Church of England. This was the kind of religious test which the founders prohibited. They had no objection to biblical qualifications. What they objected to was the requirement that all government officials be forced to swear allegiance to the codified doctrines of an established church.
The wisdom of this objection can be illustrated by an examination of the different doctrines of the Christian churches on baptism. Some churches teach that baptism is necessary in order for one to become a Christian while others teach that baptism is not necessary but merely symbolic. There is no reconciliation between these two views. Those holding to the first view often deny the Christianity of those holding to the second and vice versa. Therefore, if the founding fathers had permitted religious tests by saying that only Christians could hold office under the new Constitution, they would have placed us in the difficult position of allowing our government to determine which of these two views on baptism is correct. The churches would immediately have recognized that whichever church managed to obtain a majority representation in the new government would have the power to define all other denominations as non-Christians and force them out of the political arena entirely. This is exactly how the Test Acts were used in England, and it was one of the reasons that so many Christians had fled to America in the first place. Our founding fathers realized that the only way to prevent this abuse of the power of government is to eliminate the religious test requirements altogether.
That this is the view which the founders had in mind can be seen in the statement on this clause by Oliver Ellsworth. Mr. Ellsworth was one of the pivotal drafters of the Constitution, and he later became the third Chief Justice of the Supreme Court. In his defense of the religious test clause, Mr. Ellsworth first explained what was meant by the term “religious test”:
“A religious test is an act to be done, or profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one’s belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissible to a publick office.”[1]
He then proceeded to examine the most basic religious test possible and to demonstrate that it would be wrong for us to have such a test in America.
If any test-act were to be made, perhaps the least exceptionable would be one, requiring all persons appointed to office to declare at the time of their admission, their belief in the being of a God, and in the divine authority of the scriptures … But I answer: His making a declaration of such a belief is no security at all. For suppose him to be an unprincipled man, who believes neither the word nor the being of God; and to be governed merely by selfish motives; how easy is it for him to dissemble! how easy is it for him to make a public declaration of his belief in the creed which the law prescribes; and excuse himself by calling it a mere formality. This is the case with the test-laws and creeds in England … In short, test-laws are utterly ineffectual: they are no security at all … If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”
The final sentence of Mr. Ellsworth’s statement brings us back to our original question. Did the founders include the religious test clause in order to establish a secular government? Not at all. They simply placed the responsibility for the religious character of our government on the shoulders of the people themselves. If we have men in office today who are enemies to the Christian faith, then it is not the fault of the founding fathers but solely that of we the people.
Here are some additional comments from the founding era in regards to the religious test clause:
In an address made to George Washington in 1789 by the ministers of the First Presbytery of the Eastward said:
“Among the objections to the Federal Constitution we have never considered the want of a Religious Test, that grand engine of persecution in every tyrant’s hand.”[2]
Joseph Story addressed this clause in his Commentaries on the Constitution by explaining that it was intended to prohibit laws similar to the English Corporation Act and Test Acts. He then state that:
“It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass test-laws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.”[3]
Tench Coxe expressed a similar view of this clause when he explained that:
“In England every Presbyterian, and other person not of their established church, is incapable of holding an office. No such impious deprivation of the rights of men can take place under the new foederal constitution.”[4]
Oliver Wollcott also understood the religious test clause in this manner when he said:
“For myself, I should be content either with or without that clause in the Constitution which excludes test laws. Knowledge and liberty are so prevalent in this country, that I do not believe that the United States would ever be disposed to establish one religious sect, and lay all others under legal disabilities. But as we know not what may take place hereafter, and any such test would be exceedingly injurious to the rights of free citizens, I cannot think it altogether superfluous to have added a clause, which secures us from the possibility of such oppression.”[5]
We could also consider the statement by Mr. Shute in the Massachusetts Ratifying Convention:
“To object to the latter part of the paragraph under consideration, which excludes a religious test, is, I am sensible, very popular; for the most of men, somehow, are rigidly tenacious of their own sentiments in religion, and disposed to impose them upon others as the standard of truth.”
Then we have this statement from Edmund Randolph, another pivotal member of the Constitutional Convention:
“Although officers, &c. are to swear that they will support this constitution, yet they are not bound to support one mode of worship, or to adhere to one particular sect.”[6]
In addition to these men, the record includes the following statement from Mr. Payson:
“Relying on the candor of this Convention, I shall take the liberty to express my sentiments on the nature of a religious test, and shall endeavor to do it in such propositions as will meet the approbation of every mind. The great object of religion being God supreme, and the seat of religion in man being the heart or conscience, i.e., the reason God has given us, employed on our moral actions, in their most important consequences, as related to the tribunal of God, hence I infer that God alone is the God of the conscience, and, consequently, attempts to erect human tribunals for the consciences of men are impious encroachments upon the prerogatives of God. Upon these principles, had there been a religious test as a qualification for office, it would in my opinion, have been a great blemish upon the instrument.”[7]
And then there is this statement from Mr. Backus:
“I now beg leave to offer a few thoughts upon some points in the Constitution proposed to us, and I shall begin with the exclusion of any religious test. Many appear to be much concerned about it; but nothing is more evident, both in reason and the Holy Scriptures, than that religion is ever a matter between God and individuals; and, therefore, no man or men can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ … Some serious minds discover a concern lest, if all religious tests should be excluded, the Congress would hereafter establish Popery, or some other tyrannical way of worship. But it is most certain that no such way of worship can be established without any religious test.”[8]
In the North Carolina ratifying convention, James Iredell, who was later to become one of our first Supreme Court Justices said:
“I did not expect any objection to this particular regulation, which, in my opinion, is calculated to prevent evils of the most pernicious consequences to society. Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. Under the color of religiuos tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centered in themselves; that they alone had a right to dictate to the rest of mankind; and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit had been, that each church has in turn set itself up against every other…
Were we to judge from the examples of religious tests in other countries, we should be persuaded that they do not answer the purpose for which they are intended. What is the consequence of such in England? In that country no man can be a member in the House of Commons, or hold any office under the crown, without taking the sacrament according to the rites of the Church … The intention was, to exclude all persons from offices but the members of the Church of England. Yet it is notorious that dissenters qualify themselves for offices in this manner, though they never conform to the Church on any other occasion; and men of no religion at all have no scruple to make use of this qualification. It never was known that a man who had no principles of religion hesitated to perform any rite when it was convenient for his private interest. No test can bind such a one…
But it is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude and set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world. The people in power were always right, and every body else wrong. If you admit the least difference, the door to persecution is opened.”[9]
Gov. Johnston rose to speak after Mr. Iredell. Here is his statement in full:
“I read the Constitution over and over, but could not see one cause of apprehension or jealousy on this subject. When I heard there were apprehensions that the pope of Rome could be the President of the United States, I was greatly astonished. It might as well be said that the king of England or France, or the Grand Turk, could be chosen to that office. It would have been as good an argument. It appears to me that it would have been dangerous, if Congress could intermeddle with the subject of religion. True religion is derived from a much higher source than human laws. When any attempt is made, by any government, to restrain men’s consciences, no good consequence can possibly follow. It is apprehended that Jews, Mahometans, pagans, &c., may be elected to high offices under the government of the United States. Those who are Mahometans, or any others who are not professors of the Christian religion, can never be elected to the office of President, or other high office, but in one of two cases. First, if the people of America lay aside the Christian religion altogether, it may happen. Should this unfortunately take place, the people will choose such men as think as they do themselves. Another case is, if any persons of such descriptions should notwithstanding their religion, acquire the confidence and esteem of the people of America by their good conduct and practice of virtue, they may be chosen. I leave to gentlemen’s candor to judge what probability there is of the people’s choosing men of different sentiments from themselves.
But great apprehensions have been raised as to the influence of the Eastern States. When you attend to circumstances, this will have no weight. I know but two or three states where there is the least chance of establishing any particular religion. The people of Massachussetts and Connecticut are mostly Presbyterians. In every other state, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. in New Jersey, they are as much divided as we are. In Pensylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.”
After Gov. Johnston’s speech there was an objection made to the religious test clause by Mr. Caldwell who desired to prevent non-Christians from immigrating to America. He said that:
“Those gentlemen who formed this Constitution should not have given this invitation to Jews and heathens. All those who have any religion are against the emigration of those people from the eastern hemisphere.”
In response to this, Mr. Spencer also voiced his opinion on the matter:
“Gentlemen urge that the want of a test admits the most vicious characters to offices. I desire to know what test could bind them. If they were of such principles, it would not keep them from enjoying those offices. On the other hand, it would exclude from offices conscientious and truly religious people, though equally capable as others. Conscientious persons would not take such an oath, and would be therefore excluded. this would be a great cause of objection to a religious test. But in this case, as there is not a religious test required, it leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place. I confess it strikes me so. I am sorry to differ from the worthy gentleman. I cannot object to this part of the Constitution.”
Gov. Johnston then spoke again, and his comment ended the discussion of this issue. Here is the record of his statement:
“He admitted a possibility of Jews, pagans, &c., emigrating to the United States; yet, he said, they could not be in proportion to the emigration of Christians who should come from other countries; that, in all probability, the children even of such people would be Christians; and that this, with the rapid population of the United States, their zeal for religion, and love of liberty, would, he trusted, add to the progress of the Christian religion among us.”
__________________________________________
[1] http://press-pubs.uchicago.edu/founders/documents/a6_3s14.html
[2] http://books.google.com/books?id=rDMrAAAAYAAJ&pg=PA66
[3] http://press-pubs.uchicago.edu/founders/documents/a6_3s27.html
[4] http://press-pubs.uchicago.edu/founders/documents/a6_3s12.html
[5] http://press-pubs.uchicago.edu/founders/documents/a6_3s17.html
[6] http://press-pubs.uchicago.edu/founders/documents/a6_3s24.html
[7] http://books.google.com/books?id=WYxKAAAAYAAJ&&pg=PA120
[8] http://books.google.com/books?id=WYxKAAAAYAAJ&&pg=PA148
[9] http://books.google.com/books?id=ccfZAAAAMAAJ&pg=PA192
To understand the true purpose of the religious test clause, we must hearken back to the Corporation Act of 1661. This was the first of three Test Acts which were implemented in England and which remained in effect until 1828. Under these acts, no one could hold office in England unless he swore an oath of fealty not to God but rather to the doctrines of the Church of England. This was the kind of religious test which the founders prohibited. They had no objection to biblical qualifications. What they objected to was the requirement that all government officials be forced to swear allegiance to the codified doctrines of an established church.
The wisdom of this objection can be illustrated by an examination of the different doctrines of the Christian churches on baptism. Some churches teach that baptism is necessary in order for one to become a Christian while others teach that baptism is not necessary but merely symbolic. There is no reconciliation between these two views. Those holding to the first view often deny the Christianity of those holding to the second and vice versa. Therefore, if the founding fathers had permitted religious tests by saying that only Christians could hold office under the new Constitution, they would have placed us in the difficult position of allowing our government to determine which of these two views on baptism is correct. The churches would immediately have recognized that whichever church managed to obtain a majority representation in the new government would have the power to define all other denominations as non-Christians and force them out of the political arena entirely. This is exactly how the Test Acts were used in England, and it was one of the reasons that so many Christians had fled to America in the first place. Our founding fathers realized that the only way to prevent this abuse of the power of government is to eliminate the religious test requirements altogether.
That this is the view which the founders had in mind can be seen in the statement on this clause by Oliver Ellsworth. Mr. Ellsworth was one of the pivotal drafters of the Constitution, and he later became the third Chief Justice of the Supreme Court. In his defense of the religious test clause, Mr. Ellsworth first explained what was meant by the term “religious test”:
“A religious test is an act to be done, or profession to be made, relating to religion (such as partaking of the sacrament according to certain rites and forms, or declaring one’s belief of certain doctrines,) for the purpose of determining whether his religious opinions are such, that he is admissible to a publick office.”[1]
He then proceeded to examine the most basic religious test possible and to demonstrate that it would be wrong for us to have such a test in America.
If any test-act were to be made, perhaps the least exceptionable would be one, requiring all persons appointed to office to declare at the time of their admission, their belief in the being of a God, and in the divine authority of the scriptures … But I answer: His making a declaration of such a belief is no security at all. For suppose him to be an unprincipled man, who believes neither the word nor the being of God; and to be governed merely by selfish motives; how easy is it for him to dissemble! how easy is it for him to make a public declaration of his belief in the creed which the law prescribes; and excuse himself by calling it a mere formality. This is the case with the test-laws and creeds in England … In short, test-laws are utterly ineffectual: they are no security at all … If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”
The final sentence of Mr. Ellsworth’s statement brings us back to our original question. Did the founders include the religious test clause in order to establish a secular government? Not at all. They simply placed the responsibility for the religious character of our government on the shoulders of the people themselves. If we have men in office today who are enemies to the Christian faith, then it is not the fault of the founding fathers but solely that of we the people.
Here are some additional comments from the founding era in regards to the religious test clause:
In an address made to George Washington in 1789 by the ministers of the First Presbytery of the Eastward said:
“Among the objections to the Federal Constitution we have never considered the want of a Religious Test, that grand engine of persecution in every tyrant’s hand.”[2]
Joseph Story addressed this clause in his Commentaries on the Constitution by explaining that it was intended to prohibit laws similar to the English Corporation Act and Test Acts. He then state that:
“It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass test-laws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.”[3]
Tench Coxe expressed a similar view of this clause when he explained that:
“In England every Presbyterian, and other person not of their established church, is incapable of holding an office. No such impious deprivation of the rights of men can take place under the new foederal constitution.”[4]
Oliver Wollcott also understood the religious test clause in this manner when he said:
“For myself, I should be content either with or without that clause in the Constitution which excludes test laws. Knowledge and liberty are so prevalent in this country, that I do not believe that the United States would ever be disposed to establish one religious sect, and lay all others under legal disabilities. But as we know not what may take place hereafter, and any such test would be exceedingly injurious to the rights of free citizens, I cannot think it altogether superfluous to have added a clause, which secures us from the possibility of such oppression.”[5]
We could also consider the statement by Mr. Shute in the Massachusetts Ratifying Convention:
“To object to the latter part of the paragraph under consideration, which excludes a religious test, is, I am sensible, very popular; for the most of men, somehow, are rigidly tenacious of their own sentiments in religion, and disposed to impose them upon others as the standard of truth.”
Then we have this statement from Edmund Randolph, another pivotal member of the Constitutional Convention:
“Although officers, &c. are to swear that they will support this constitution, yet they are not bound to support one mode of worship, or to adhere to one particular sect.”[6]
In addition to these men, the record includes the following statement from Mr. Payson:
“Relying on the candor of this Convention, I shall take the liberty to express my sentiments on the nature of a religious test, and shall endeavor to do it in such propositions as will meet the approbation of every mind. The great object of religion being God supreme, and the seat of religion in man being the heart or conscience, i.e., the reason God has given us, employed on our moral actions, in their most important consequences, as related to the tribunal of God, hence I infer that God alone is the God of the conscience, and, consequently, attempts to erect human tribunals for the consciences of men are impious encroachments upon the prerogatives of God. Upon these principles, had there been a religious test as a qualification for office, it would in my opinion, have been a great blemish upon the instrument.”[7]
And then there is this statement from Mr. Backus:
“I now beg leave to offer a few thoughts upon some points in the Constitution proposed to us, and I shall begin with the exclusion of any religious test. Many appear to be much concerned about it; but nothing is more evident, both in reason and the Holy Scriptures, than that religion is ever a matter between God and individuals; and, therefore, no man or men can impose any religious test, without invading the essential prerogatives of our Lord Jesus Christ … Some serious minds discover a concern lest, if all religious tests should be excluded, the Congress would hereafter establish Popery, or some other tyrannical way of worship. But it is most certain that no such way of worship can be established without any religious test.”[8]
In the North Carolina ratifying convention, James Iredell, who was later to become one of our first Supreme Court Justices said:
“I did not expect any objection to this particular regulation, which, in my opinion, is calculated to prevent evils of the most pernicious consequences to society. Every person in the least conversant in the history of mankind, knows what dreadful mischiefs have been committed by religious persecutions. Under the color of religiuos tests, the utmost cruelties have been exercised. Those in power have generally considered all wisdom centered in themselves; that they alone had a right to dictate to the rest of mankind; and that all opposition to their tenets was profane and impious. The consequence of this intolerant spirit had been, that each church has in turn set itself up against every other…
Were we to judge from the examples of religious tests in other countries, we should be persuaded that they do not answer the purpose for which they are intended. What is the consequence of such in England? In that country no man can be a member in the House of Commons, or hold any office under the crown, without taking the sacrament according to the rites of the Church … The intention was, to exclude all persons from offices but the members of the Church of England. Yet it is notorious that dissenters qualify themselves for offices in this manner, though they never conform to the Church on any other occasion; and men of no religion at all have no scruple to make use of this qualification. It never was known that a man who had no principles of religion hesitated to perform any rite when it was convenient for his private interest. No test can bind such a one…
But it is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude and set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world. The people in power were always right, and every body else wrong. If you admit the least difference, the door to persecution is opened.”[9]
Gov. Johnston rose to speak after Mr. Iredell. Here is his statement in full:
“I read the Constitution over and over, but could not see one cause of apprehension or jealousy on this subject. When I heard there were apprehensions that the pope of Rome could be the President of the United States, I was greatly astonished. It might as well be said that the king of England or France, or the Grand Turk, could be chosen to that office. It would have been as good an argument. It appears to me that it would have been dangerous, if Congress could intermeddle with the subject of religion. True religion is derived from a much higher source than human laws. When any attempt is made, by any government, to restrain men’s consciences, no good consequence can possibly follow. It is apprehended that Jews, Mahometans, pagans, &c., may be elected to high offices under the government of the United States. Those who are Mahometans, or any others who are not professors of the Christian religion, can never be elected to the office of President, or other high office, but in one of two cases. First, if the people of America lay aside the Christian religion altogether, it may happen. Should this unfortunately take place, the people will choose such men as think as they do themselves. Another case is, if any persons of such descriptions should notwithstanding their religion, acquire the confidence and esteem of the people of America by their good conduct and practice of virtue, they may be chosen. I leave to gentlemen’s candor to judge what probability there is of the people’s choosing men of different sentiments from themselves.
But great apprehensions have been raised as to the influence of the Eastern States. When you attend to circumstances, this will have no weight. I know but two or three states where there is the least chance of establishing any particular religion. The people of Massachussetts and Connecticut are mostly Presbyterians. In every other state, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. in New Jersey, they are as much divided as we are. In Pensylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.”
After Gov. Johnston’s speech there was an objection made to the religious test clause by Mr. Caldwell who desired to prevent non-Christians from immigrating to America. He said that:
“Those gentlemen who formed this Constitution should not have given this invitation to Jews and heathens. All those who have any religion are against the emigration of those people from the eastern hemisphere.”
In response to this, Mr. Spencer also voiced his opinion on the matter:
“Gentlemen urge that the want of a test admits the most vicious characters to offices. I desire to know what test could bind them. If they were of such principles, it would not keep them from enjoying those offices. On the other hand, it would exclude from offices conscientious and truly religious people, though equally capable as others. Conscientious persons would not take such an oath, and would be therefore excluded. this would be a great cause of objection to a religious test. But in this case, as there is not a religious test required, it leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place. I confess it strikes me so. I am sorry to differ from the worthy gentleman. I cannot object to this part of the Constitution.”
Gov. Johnston then spoke again, and his comment ended the discussion of this issue. Here is the record of his statement:
“He admitted a possibility of Jews, pagans, &c., emigrating to the United States; yet, he said, they could not be in proportion to the emigration of Christians who should come from other countries; that, in all probability, the children even of such people would be Christians; and that this, with the rapid population of the United States, their zeal for religion, and love of liberty, would, he trusted, add to the progress of the Christian religion among us.”
__________________________________________
[1] http://press-pubs.uchicago.edu/founders/documents/a6_3s14.html
[2] http://books.google.com/books?id=rDMrAAAAYAAJ&pg=PA66
[3] http://press-pubs.uchicago.edu/founders/documents/a6_3s27.html
[4] http://press-pubs.uchicago.edu/founders/documents/a6_3s12.html
[5] http://press-pubs.uchicago.edu/founders/documents/a6_3s17.html
[6] http://press-pubs.uchicago.edu/founders/documents/a6_3s24.html
[7] http://books.google.com/books?id=WYxKAAAAYAAJ&&pg=PA120
[8] http://books.google.com/books?id=WYxKAAAAYAAJ&&pg=PA148
[9] http://books.google.com/books?id=ccfZAAAAMAAJ&pg=PA192