Saturday, April 8, 2017

Religious Tests for State Office Did Not Violate the First Amendment

Another from the "Protestant Nation" chronicles per federalism—over at my other groupblog, the New Reform Club, the estimable constitutional scholar Seth Barrett Tillman tells an interesting legal story of Founding-era America:

Like many of the post-revolutionary constitutions of the newly independent states, the 1776 Constitution of North Carolina limited eligibility in regard to (some) positions in the state government. Only Protestants were eligible. Specifically, Article XXXII provided:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

In 1809, while the 1776 North Carolina Constitution was still in force, Jacob Henry was elected (actually reelected) to the House of Commons, i.e., the lower house of the North Carolina legislature. Henry was Jewish. His qualifications were contested, and the members of the Commons acted as judges of the election. A celebrated debate about religious freedom was to take place. “Mr. Henry boldly and successfully defended his rights, though a most curious construction of Article XXXII was adopted in order to enable him to retain his seat.”

Interestingly, there is no record (of which I am aware) indicating that wide ranging concerns about religious freedom or religious establishments swung the members. It appears that what interested the members was not abstract norms, fairness, or even the purposes of Article XXXII; rather, what swung the members’ decision was their understanding of the state constitution’s actual language. As Professor Orth has explained: “The house…refused to exclude him, apparently on the ground that a seat in the General Assembly was not an ‘Office…of Trust or Profit’ within the meaning of the North Carolina Constitution ….” To put it another way:

Despite all this, however, the victory [for freedom of religion in North Carolina] was one in form only, not in substance. As a matter of fact, the [Article XXXII Religious] [T]est was more firmly implanted than ever. The House of Commons in permitting Henry to retain his seat…emphasized rather than weakened its prohibition. The decision was based on the fact that the Constitution prohibited non-Protestants from holding office in any civil department of the State. This was interpreted not to exclude such persons from serving in the legislature. The legislative office, it was said, was above all civil offices.

For the rest, and to see how this is relevant to the current Foreign Emoluments Clause controversy being visited on President Trump, see Seth's full essay at NRC.


Jonathan Rowe said...

Before the 14th Amendment, NONE of the Bill of Rights applied against the states. It's Barron v. Baltimore.

It's not as though the Founders of the federal republic OR many involved in state and local governments wanted violations of key rights at the state or local level. But it was understood that the jurisdiction for establishing the lines and policing violations rested with the states.

Jefferson and Madison's Virginia Statute is instructive on this dynamic when it stated:

"And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the act of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such as would be an infringement of natural right."

In other words, even though this was a fundamental matter of "natural right" the buck stopped with the VA state legislature.

Lex Lata said...

I'm not sure the comparison between the Foreign Emoluments Clause and the interpretation of the religious test in NC's 1776 constitution bears the weight Tillman places on it. The limiting qualifier "in any civil department" seems to have played a significant and possibly dispositive role in the case of Jacob Henry. No such qualifier appears in the U.S. Constitution's Foreign Emoluments Clause.

Edmund Randolph was (as far as I can tell) the only Framer to have commented explicitly on the Foreign Emoluments Clause's application to the Executive. During debates on the ratification of the U.S. Constitution in Virginia,, then-Governor Randolph addressed concerns about the risks posed by foreign lucre: "There is another provision against the danger mentioned by the Honorable Member [George Mason], of the President receiving emoluments from foreign powers. If discovered he may be impeached . . . . By the ninth section, of the first article, 'No person holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the Representatives of the people;' . . . . I consider, therefore that he is restrained from receiving any present or emoluments whatsoever." Randolph's contemporary understanding of the Foreign Emoluments Clause itself strikes me as more relevant and persuasive evidence of the Clause's original intended scope than North Carolina's later interpretation of its own constitution's distinguishable religious test provision.

(Whether presidential practice has been consistent with Randolph's view, whether the lawsuit against Trump will succeed, etc., are related but different questions.)

Tom Van Dyke said...

Before the 14th Amendment, NONE of the Bill of Rights applied against the states.

That's why whatever "separation of church and state" existed only applied to the federal [Wash DC] government. Yet very few seem to know this, hence this post.

States were free to be religious, such as Massachusetts, or secular like Virginia. I'd say some of the "Christian America" people are unaware of that fact.

I have no problem with Torcaso [1961] as an equal protection issue, but I also don't think the 14th was ever contemplated to drive religion out of the public square completely, the other extreme that the Supreme Court has flirted with. If a state wants the Ten Commandments in public places, it hurts no individual's rights, and it's none of the federal government's goddam business.

Tom Van Dyke said...

(Whether presidential practice has been consistent with Randolph's view, whether the lawsuit against Trump will succeed, etc., are related but different questions.)

Seth argues that President George Washington certainly didn't share that view, and that prime cut of federal custom & practice trumps anything or anybody else. What you're seeing in this particular essay is a secondary argument. Here's the meat of it: