One of the concerns Paul Horwitz addresses in his excellent paper on Article Six of the Constitution (discussed here) is the loss of Article Six as a standard for political discourse about religion.

Horwitz’s response to that concern is intriguing. He distinguishes between the “Constitutional” and the “political” and argues that the Constitution should not overwhelm political discourse. He writes:

[My interpretation] is sound, first and foremost, because, to return to the theme of the Constitution outside the courts, it “distributes responsibility for constitutional law broadly.” By “constitutional law,” in this case, I am not referring simply to the provisions of our Constitution itself, but more broadly to “the fundamentals of our political order.” An expansive reading of the Religious Test Clause like that offered by Sidak and others effectively reduces the scope of popular responsibility for our “political order.” By drawing a broad constitutional boundary around an ever-expanding set of inquiries into the fitness of various potential federal office-holders, it reduces the discretion of those elected officials who are responsible for selecting and passing on those nominees. Moreover, in so doing, it assigns the role of monitoring the conduct of those elected officials to the courts, or to various other official mechanisms for monitoring and disciplining the decisions of those officials. As the boundary of what is “constitutional” or “unconstitutional” expands, the realm of political accountability perforce must diminish. To constitutionalize every question that ought to be left for popular resolution in the political arena is thus to diminish the scope of popular ownership of and responsibility for the conduct of our national politics.

Later in the paper, he adds:

To say that the President may nominate an individual to public office for religious reasons, or that a Senator may oppose the confirmation of that nominee for religious reasons, is thus not the same thing as saying that either the President or individual Senators ought to do so. Sidak may be right that such inquiries are, more often than not, “intractable, if not . . . excruciating.” If so, voters remain free to lobby against such misuses, to speak out loudly against them, and to cast votes in elections or run for office themselves. But, outside the narrow scope of the intolerable test oaths that the Religious Test Clause clearly prohibited, the best remedy – the only appropriate remedy – for the perceived misuse of religion by elected officials is a political remedy. And that is as it should be in any vigorous and properly functioning political system. Those who have deliberately adopted the language of the Religious Test Clause to effectively argue that the Constitution precludes the exercise of discretion by elected officials in any area touching on religion and judicial or other nominees, and who thus diminish the realm of political accountability for such officials, do no favors for our constitutional order.

Presumably, Horowitz has in mind the electoral process which we are currently undergoing. If I understand him properly, there is nothing unconstitutional about evangelicals–or any other subgroup–playing identity politics (assuming for the sake of argument), though such a move may be politically disadvantageous (which, in the case of Mike Huckabee, I have argued all along).

Horowitz’s distinction between the “political” and the “constitutional” has important ramifications for how we understand our own society. When the latter subsumes the former–as, it could be argued, as happened in many pro-life issues–the Supreme Courts assumes a dominant position within the federal government.

Conservatives would do well to take the lead in returning to a robust understanding of the political order–not by abandoning Constitutional reasoning, but by working to restore properly political dialog and invoking the Constitution only in those places and times that it is actually pertinent.

Posted by Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.

  • Horowitz is right to say that the Constitution “distributes responsibility for constitutional law broadly.” Its unspecified rights and responsibilities are delegated to the states and the people. It’s specified rights are really given legal force by the political process we all engage in as citizens, not by any central authority.

    Most of us are worried about the ways that Congress has discovered the need for more and more federal responsibilities, which inevitably reduce the power of the people themselves. In making appeals to the Constitution, we invite the courts and Congress to create narrow solutions to problems that will poorly fit the needs of the country as a whole.

    So I think conservatives need to be very careful in their appeals to Article 6 not to invite Congress or the courts to step in and “clarify” things. That would only further erode our rights as citizens.

  • Matt, I think another important and positive use for Article VI is political, not coercive or legalistic. This view sees the Constitution as a teacher. For example, we argue at Article VI Blog that although voters certainly are free to use a religious test in the voting booth, and candidates are surely free to use such a test to promote themselves and attack their opponents, it is contrary to the spirit of the Constitution to do so. In other words, people can use religious tests, but they shouldn’t, in light of the wise principles embedded in the Constitution. It’s un-American, we say. Again, that’s a purely political argument and would (and should) be laughed out of court if ever raised there.

    Interesting post. Thanks!

  • Matthew Lee Anderson

    Lowell,

    Thanks for commenting!

    The idea that religious tests in the voting booth are “unAmerican” would carry more water for me, except I can’t get around the imposition of religious tests at the State level and the apparent refusal of the Constitution’s framers to prohibit such tests. Your standard of “American” is too good, it seems, for at least a few of the founders of our country.

    Additionally, I’m curious what “wise principle” you discern in the language of Article 6, or what the “spirit” of the document is. It seems rather nebulous, and open to imposition of our modern biases. Unless such a position can be proved from the language of the document itself (or from the surrounding documents about it’s inception), then I can hardly see how the position depends upon anything other than a non-originalist interpretation of the text.