The Political and The Constitutional

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.