Evaluating candidates based on their religious views

[Vance R. Koven]

I suspect that the analysis here is based on something even more fundamental
than constitutional law, which is republican government theory. Since in a
republican polity the people *are* sovereign, constitutional analysis is
limited to the institutions and processes the people select to effect their
chosen governmental structure. Therefore, although a constitution can
specify that organs of state can determine qualification to vote, and what
sorts of things voters can do directly (e.g. referendums), the direct powers
and the limitations on the powers of governmental bodies have to be driven
by the sovereign public. One example of how this plays out is in amendments:
assuming one follows the methodology prescribed by the constitution, a
constitutional amendment can't itself be "unconstitutional." All of which is
a long way of saying that Eugene is specifically right that if the people
wanted the institutions of government to be able to limit the motivations on
which voters can vote, the constitution would have to specify that pretty
clearly as a limitation on popular sovereignty.
The difference between collusively voting for or against someone based on
religion (or any other criterion) and collusively voting to enact a law that
only people fulfilling a particular criterion are eligible for a position,
is the difference between direct sovereign conduct and the manipulation of
governmental institutions. Since the constitution describes how the latter
can be done, failing to do it that way makes the action subject to
constitutional attack. Contrast a collusive vote (if this were possible) to
amend the constitution to require the same thing that the putative law would
require, and that would be (at least legally) unassailable.

Vance

On Tue, Sep 22, 2009 at 3:28 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>                 The last question reminds me of Justice Powell’s dissent
> in *Branti v. Finkel*, where he pointed out that “The voters of Rockland
> County are free to elect their public defender and assistant public
> defenders instead of delegating their selection to elected and appointed
> officials. Certainly the Court's holding today would not preclude the
> voters, the ultimate "hiring authority," from choosing both public defenders
> and their assistants by party membership. The voters' choice of public
> officials on the basis of political affiliation is not yet viewed as an
> inhibition of speech; it is democracy. Nor may any incumbent contend
> seriously that the voters' decision not to reelect him because of his
> political views is an impermissible infringement upon his right of free
> speech or affiliation. In other words, the operation of democratic
> government depends upon the selection of elected officials on precisely the
> basis rejected by the Court today.”
>
>
>
>                Yet that didn’t carry the day, presumably because voters –
> the sovereign – are entitled to make election decisions on bases that
> government officials may not use in appointment decisions.  This may be
> especially unappealing when the basis is race or religion, as opposed to
> ideology, but I think the underlying constitutional analysis must be
> similar:  The voters’ choice of public officials on any basis the voters
> please, and not just ideology, is democracy.  Surely if, to borrow from *
> Ricci*, black voters give preference to black candidates over more
> qualified white or Hispanic candidates – for any office, high or low – that
> is no constitutional violation.
>
>
>
>                Eugene
>
>
>
> Alan Brownstein writes:
>
>
>
> I don’t have a satisfactory analysis of this issue either, but there are
> lots of interesting hypos that push the edge of the envelope. Two examples:
>
>
>
> Would the primary of a political party limited to candidates of a
> particular faith be constitutional?
>
>
>
> By analogy to the firefighter’s Title VII case from last term. The names of
> the top ten candidates for promotion to Captain or other leadership
> positions in the fire department (the candidates who scored highest on the
> exams and tests used for promotions) are submitted to the voters for
> approval. All candidates of a particular religion (or race) are regularly
> rejected by the electorate, even if they have the highest scores. Are these
> promotion decisions constitutional?
>
>
>
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-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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