Paul Horwitz, guest-blogging at Volokh Conspiracy, writes on the Religious Test Clause in Article V of the Constitution (”[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States”) in the context of recent judicial nomination hearings.

[T]he framers and ratifiers of the Religious Test Clause had a specific historical evil in mind when they crafted the Clause: that set of formally imposed oaths and very closely allied practices that were used to restrict office-holders in England to those willing to follow the doctrines of the established church…

[D]espite the framers’ and ratifiers’ willingness to ban religious tests at the federal level, such tests were rife at the state level, before, during, and after the ratification of the Religious Test Clause. We might read that fact as having purely jurisdictional significance: the ratifiers were willing to see such a test at the federal level but not the state level. But I think it also adds to our understanding of the federal clause. It makes us understand just how revolutionary the federal clause was… and that may lead us to favor a somewhat narrow meaning for the clause. We might be more inclined to read the Clause as focusing more specifically and narrowly on the kinds of historical evils it was aimed against, rather than lightly assuming that, to quote Laurence Tribe, the framers and ratifiers were moving to “prioritize[] the secular over the religious in the [federal] public realm.” Finally and relatedly, I point to the fact that, as the historical record makes clear, notwithstanding the Clause, the founding generation widely agreed that moral character was highly relevant to the holding of federal public office — and for many or most of these individuals, moral character was largely synonymous with religious character. Whatever else they may have meant by the Clause, it is not likely they thought that those who nominated and approved such office-holders were required to treat religion as a forbidden or irrelevant factor.

Horwitz’s recalls the controversies surrounding the nomination hearings of Chief Justice Roberts, Bill Pryor, and Harriet Miers, concluding that

[o]n a constitutional level, the individual members of the Senate were free, if they chose, to question Bill Pryor, John Roberts, and others on their “deeply held views” — and would have been equally entitled to question them directly, and hostilely (or approvingly), on their religious views. They would similarly have been entitled to vote against these nominees if they were concerned about the relationship between their religious views and their future conduct in judicial office — or, indeed, to vote against them (or for them!) more directly on the basis of their religious views. And if President Bush promoted Harriet Miers on the basis of her religion — indeed, if he chose her precisely because of her religion, and perforce disqualified other nominees because of theirs — then he did nothing wrong, constitutionally speaking.

I’m skeptical of Horwitz’s hyper-narrow reading of the clause but I think there’s an even deeper problem. It doesn’t follow, just because the Constitution merely prohibits formal tests (if indeed it does), that informal-but-equally-effective tests in the form of Senate hearings are acceptable. The Constitution, in addition to being our fundamental legal document, is also a reflection of its authors’ and ratifiers’ attitudes and values. Perhaps the Framers forbade religious tests at the federal level because, as Jonathon Rowe points out, “[t]hey couldn’t pass most of the religious tests that existed at the state level.”

Even if Horwitz is right that the Framers “had a specific historical evil in mind when they crafted the Clause,” it’s quite possible that the current political climate presents an analogous evil. The evil Horwitz points to is “that set of formally imposed oaths and very closely allied practices that were used to restrict office-holders in England to those willing to follow the doctrines of the established church.” What was so bad about those formal oaths that wouldn’t include today’s de facto religious litmus tests? Horwitz would have us believe that it was merely the formality of those oaths that offended the Framers. I doubt it.