What About the No Test Oath Clause

[Howard Schweber]

At 01:24 PM 11/23/2006 -0800, Volokh, Eugene wrote:
>Mark Stein is quite right, I think.  All moral arguments for laws 
>ultimately rest, expressly or implicitly, on some unprovable moral 
>assumptions.  If they are successful moral arguments, they are often 
>successful largely because they appeal to shared belief in those 
>assumptions.  That's true whether the moral assumptions stem from belief 
>in some religious code, in libertarianism, in utilitarianism, in 
>egalitarianism, or in whatever else.  (Empirical arguments usually also 
>rest on implicit moral assumptions about how we should value various 
>interests.)


         Certainly.  To put it another way, theories of good collapse into 
theories of right and vice verse.  But there are two important distinctions 
to be drawn here.  First, there is -- or arguably is not -- a distinction 
between moral principles writ large and a special (or not special) sub-set 
of those principles that derive from religions.  Second, there is a 
distinction between ordinary actors and public officials.  In what follows, 
I apologize in advance for a lengthy answer, but I don't know how to give a 
short one here.

         As to the first distinction, as Francis Fukayama observes in The 
Last Man, democracy began when the unity between religious and political 
authority was broken.  One reason that this separation was necessary is 
that religious moral principles are non-debatable in a way that other moral 
principles are not.  The difference is that religion (I am using the word 
loosely and without examination at the moment) is about following the 
dictates of someone else.  If someone says "I believe abortion to be 
morally wrong in all cases," I can have an argument with that person to the 
effect "you ought not to believe that."  But if someone says "God says 
abortion is morally wrong in all cases" I cannot have an argument with that 
person at all -- they will simply tell me to take it up with God.  Within 
religious traditions, to be sure, there is room for argument about whether 
the interpretation of divine law is correct or not, but in a pluralistic 
society in which multiple religious and non-religious traditions are 
represented that is small comfort.  Now, it is by no means clear that 
democracy can tolerate legislation that is based entirely on majoritarian 
moral preference in any case; that, I take it, is the heart of the 
disagreement between Kennedy and Scalia.  But if religion is a special 
case, then the idea of accepting a justification for legislation based 
entirely on claims of religious moral preference is even more problematic.
         So is religion a special case or isn't it?  I am persuaded that 
the best way to understand Madison's thinking on this point -- which I 
share (assuming I understand him correctly) -- is that religion is both 
specially valuable and specially dangerous for a democracy.  It is 
specially valuable for the individuals whose lives it shapes, and therefore 
since in a democracy we are required to care equally about the well-being 
of all individual citizens we ought to be specially careful about 
justifications that are offered for state interference in religious 
practices.  And by the same token, although this is not often mentioned, 
the state should be specially vigilant about private actors interfering 
with other private actors' observances.  And it is specially dangerous, 
which is why some degree of separation of religion and politics (the move 
that made democracy possible historically) is necessary.  What degree of 
separation is that?  Well, it is the degree of separation required to 
ensure that no direct connection is drawn between metaphysical authority -- 
which is different from metaphysical reasons or commitments held by persons 
-- and political outcomes.
         The abortion case makes this separation awfully difficult because 
of the prominence of the question of defining human personhood, an area in 
which religion has claimed special authority.  But take an easier 
case.  There is a difference between the politician who says "we must 
outlaw gambling because it has negative social consequences" and the one 
who says "we must outlaw gambling because God has told me (through whatever 
medium) that it is a sin."  And there is a difference between a candidate 
who says "vote for me because God says so" and a candidate who says "vote 
for me because I am the more moral person."  I'm not sure I really like the 
second slogan, but it is distinguishable from the first.  The historical 
and contemporary evidence of the uniquely divisive effects of combining 
religious identity with political affiliation is simply too overwhelming to 
be seriously questioned.  A story in yesterday's Times, interestingly, 
observes that in Australia there is widespread public debate and broad 
disagreement about abortion, RU-486 and similar controversial topics, but 
because there is little or no religious element to the discussion it has 
been carried out without anything like the kind of bitterness and rancor 
that characterize American debates on the subject.  The Times' reporter may 
be wrong about the reason for the lack of rancor in the debate, but it is 
certainly a plausible hypothesis.  There is massive support in the 
historical record for the proposition that when direct appeals to religious 
authority are elements of political discourse, that discourse tends toward 
what Mark Brandon calls a "failure of constitutional discourse."

         The second distinction is in response to the rhetoric about 
"second-class citizens."  Nothing of the sort has been suggested.  All 
citizens are required to leave elements of their private selves at home 
when they become public officials.  A president who modifies his oath of 
office to say "I swear to uphold and enforce those laws that I approve of" 
would not be fit for office, and if he is an incumbent should be subject to 
impeachment if it could be shown that he had acted accordingly.  A 
president who modifies his oath to say "I swear to uphold and enforce those 
laws that the Pope approves of" has taken the matter one step further; this 
was the accusation that Kennedy was able to laugh off in the 1960s, of 
course.  But modern Catholic conservatives seem to want to argue as Eugene 
does that it is appropriate for public officials to govern in accordance 
with their religious beliefs, and as good Catholics this presumably 
requires them to accept the Church's authoritative interpretation of the 
will of God.  Not that the case is much better for the Protestant president 
who says "I swear to uphold and enforce those laws that accord with my 
personal understanding of God's will."  The point here is not that religion 
is involved, the point here is that my hypothetical president is 
subordinating the duties of his office to an external authority -- 
substituting "the requirements of furthering the path of neoHegelian World 
Spirit" for "God's will" doesn't change a thing.
         Here, we were talking about legislators rather than a president, 
and the distinction is not insignificant.  A president, after all, serves 
an office that is defined by serving the will of the legislature (at least 
in in domestic affairs).  The duties of a legislator are far less easy to 
define.  Edmund Burke insisted that a representative owed his constituents 
the work of his independent conscience, not merely an articulation of their 
majority positions.  Burke promptly lost his bid for reelection, which does 
not really say anything but is a nice irony.  But let's take the easy 
case.  I think Eugene would actually find it quite easy to accept an 
argument that a legislator who relies on the authority of the wrong god in 
lawmaking should not be allowed in office.  That is, I am going to go out 
on a limb and predict that if Eugene would recognize something problematic 
in the prospect of a legislator who asserted that "Vishnu has come to me in 
a dream and told me that we are to ban the sale of all meat in our city; 
vote with me or suffer the wrath of Vishnu."  Or "Allah tells us that pork 
is unclean, so no one may be allowed to eat pork in our state."  These 
kinds of appeals should be just as disturbing when they appeal to a version 
of god the listener happens to share; democracy cannot function if its 
citizens do not exercise the minimal amount of imagination and empathy 
required to recognize that to non co-religionists it all sounds like "the 
will of Vishnu" (with apologies to worshippers of Vishnu on this 
list).  Scalia asserts that the moral preferences of the majority are a 
legitimate basis for lawmaking on the grounds that the traditional police 
powers included upholding "public morals."  Kennedy argues that the 
adoption of a constitution, and its subsequent extension to the states, 
alters the meaning of these police powers.  I side with Kennedy on this 
question in general in any case, but it seems to me that even those who 
have doubts about Kennedy's general position should find that his argument 
carries particular force where the "morals" in question are articulated as 
authoritative interpretations of divine will.
         The other problem derives from the fact that we are not merely a 
democracy, we are a constitutional republic.  Religious claims are based on 
appeals to an absolute external authority.  A person who takes public 
office swears to defend and uphold the Constitution.  Someone who -- like 
Scalia, for example -- is able to separate their personal religious 
commitments from their public role can resolve conflicts by adhering to one 
set of commitments in one setting and the other set of commitments in the 
other.  But a legislator who appeals to religious authority to justify 
legislation has dissolved that distinction, and in that instance the 
problem is inescapable:  a person who insists that in their role as a 
public official they are bound to adherence to an authority superior to the 
constitution is unfit for office in the American political system.
         As I said earlier, this is not a problem unique to religion.  A 
person who insists that their moral commitments trump their duty to uphold 
the constitution is unfit for office in just the same way.  But while the 
problem is not unique to religion, it is a characterizing trait of the 
authoritarian nature of Judeo-Christian (especially Christian) religious 
morality.  There is nothing wrong with a Christian legislator asserting 
that something is morally wrong, although whether that is a 
constitutionally adequate justification for state action was the question 
in Lawrence.  But it seems to me self-evident that there is something 
entirely different about a Christian legislator attempting to justify 
legislation on the grounds that it is required by Christianity.  Then 
again, I cling to the outmoded notion that religion is a special case.

Howard Schweber
Dept. of Political Science
UW-Madison 
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