JFC2017 – Page 17 – Warren Throckmorton

Friendly Atheist Unfriendly to Bernie Sanders' Religious Test

What do Illinois Family Institute’s Laurie Higgins, National Review’s David French, fellow Patheos blogger Hemant Mehta (The Friendly Atheist) and I have in common?
We all believe Bernie Sanders was out of line to say he will vote against Trump’s Office of Management and Budget Deputy Director nominee Russ Vought because of Vought’s religious beliefs.
Mehta has gone out on a limb with his readers to take this position, but I believe it is the right one. Article Six of the Constitution states in part:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

While Sanders may be disgusted by Vought’s religious beliefs, Sanders may not use those beliefs as a test for Vought’s service as an officer of the federal government. As Mehta said in his column (I urge you to read it, it may challenge your views about atheists), Sanders could have taken a different and appropriate approach:

The question Sanders should’ve asked is whether Vought’s beliefs about non-Christian people would ever influence his treatment of them under the law. Would he treat Muslims (or LGBT people, for that matter) the same way he treats Christians?

I want to know that as well. One of my concerns about dominionist Christians (not saying Vought is, I don’t know) getting into power is that they might favor Christians over others, using a Christian religious test. Perhaps Sanders inappropriate actions can serve as a caution to Christian politicians to consider the Golden Rule in choosing public servants – If you don’t like it when a religious test is used on your in-group, then don’t use one on members of out-groups.

No Religious Test

As far as I can tell, the “no religious test” clause was first suggested by Charles Pinckney, delegate from South Carolina to the Constitutional Convention. On May 29, 1787, Pinckney laid his plan before the Convention where it was sent to committee. Then much later on August 20, Pinckney was able to bring it to the floor. The religious test portion said:

No religious test or qualification shall ever be annexed to any oath of office, under the authority of the United States.

In his defense of the plan, Pinckney wrote:

The next Article l provides for the privilege of the Writ of Habeas Corpus — the Trial by Jury in all cases, Criminal as well as Civil — the Freedom of the Press, and the prevention of Religious Tests, as qualifications to Offices of Trust or Emolument: The three first essential in Free Governments; the last, a provision the world will expect from you, in the establishment of a System founded on Republican Principles, and in an age so liberal and enlightened as the present. (p. 122)

Note that Pinckney believed that a “liberal and enlightened” age required freedom from religious test.
Some might question whether or not we live in an enlightened age. However, it is refreshing when agreement can be found across ideological lines and that agreement is based on the foundational principles of the Republic.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here. In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
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The 1787 Constitutional Convention – States Laws Can't Be Negated by the National Legislature

June 8, 1787
Summary: The delegates decided that all state laws were not subject to veto by the National Legislature.
In the debate over the Constitution, a major need was to balance state and national power and authority. Some delegates leaned toward making states weak in comparison to the federal government and others wanted a weaker federal authority. Rather than a self-conscious application of biblical principles as David Barton and other Christian nationalist propose, the Convention hashed over numerous contradicting ideas and philosophies of government on the way to a compromise.
Charles Pinckney moved to subordinate state laws to federal law.

Mr. PINCKNEY moved, “that the National Legislature should have authority to negative all laws which they should judge to be improper.” He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it would be impossible to defend the national prerogatives, however extensive they might be, on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations: that this universal negative was in fact the corner-stone of an efficient national Government; that under the British Government the negative of the Crown had been found beneficial, and the States are more one nation now, than the colonies were then.

While Britain has at times come up as a negative example, Pinckney here invoked the British Crown as a positive model. Madison seconded the motion and appealed to current experience with state governments as reason for this proposal. On this day, the delegates negated the proposal to negate.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – Should the Senate Resemble the House of Lords or Roman Tribunals?

June 7, 1787
Summary: The delegates focused on how to elect the Senate today. Eventually, they decided that state legislatures should do it.
As has been the pattern thus far, delegates relied on Britain and the ancient republics as inspiration.

Mr. DICKINSON had two reasons for his motion — first, because the sense of the States would be better collected through their Governments, than immediately from the people at large; secondly, because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode. The greatness of the number was no objection with him. He hoped there would be eighty, and twice eighty of them. If their number should be small, the popular branch could not be balanced by them. The Legislature of a numerous people ought to be a numerous body.

Dickinson wanted the Senate to resemble the British House of Lords. Madison was informed by the example of Rome.

Mr. MADISON. If the motion (of Mr. DICKINSON) should be agreed to, we must either depart from the doctrine of proportional representation, or admit into the Senate a very large number of members. The first is inadmissible, being evidently unjust. The second is inexpedient. The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch. Enlarge their number, and you communicate to them the vices which they are meant to correct. He differed from Mr. DICKINSON, who thought that the additional number would give additional weight to the body. On the contrary, it appeared to him that their weight would be in an inverse ratio to their numbers. The example of the Roman tribunes was applicable. They lost their influence and power, in proportion as their number was augmented. The reason seemed to be obvious: they were appointed to take care of the popular interests and pretensions at Rome; because the people by reason of their numbers could not act in concert, and were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. The more the representatives of the people, therefore, were multiplied, the more they partook of the infirmities of their constituents, the more liable they became to be divided among themselves, either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. When the weight of a set of men depends merely on their personal characters, the greater the number, the greater the weight. When it depends on the degree of political authority lodged in them, the smaller the number, the greater the weight. These considerations might perhaps be combined in the intended Senate; but the latter was the material one.

Dickinson also compared the proposed system to the solar system.\

He compared the proposed national system to the solar system, in which the States were the planets, and ought to be left to move freely in their proper orbits.

Delegate Wilson used the British government as a negative example.

Mr. WILSON. The subject, it must be owned, is surrounded with doubts and difficulties. But we must surmount them. The British Government cannot be our model. We have no materials for a similar one. Our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. He did not see the danger of the States being devoured by the National Government. On the contrary, he wished to keep them from devouring the National Government. He was not, however, for extinguishing these planets, as was supposed by Mr. DICKINSON; neither did he, on the other hand, believe that they would warm or enlighten the sun. Within their proper orbits they must still be suffered to act, for subordinate purposes, for which their existence is made essential by the great extent of our country. He could not comprehend in what manner the landed interest would be rendered less predominant in the Senate by an election through the medium of the Legislatures, than by the people themselves. If the Legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views? He was for an election by the people, in large districts, which would be most likely to obtain men of intelligence and uprightness; subdividing the districts only for the accommodation of voters.

A trend is apparent. The framers did not begin or end with prayer, they did not debate the theological or biblical basis for any of their decisions. Thus far, most examples, both positive and negative, have been from Britain, the states, and Rome/Greece.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – Let the People Vote!

June 6, 1787
Today the delegates decided against having state legislatures elect the first federal legislative house. Some delegates distrusted the people to directly elect their federal representatives, preferring instead to have the people elect members of state legislatures who in turn would elect federal legislators. After debate, the delegates decided to allow people to vote on what became the House of Representatives.
James Madison gave a speech which I first reported on June 4. Since other delegates included the speech in their June 4 notes, many historians believe the speech came on that day.
In this debate, the delegates continued to refer to England and the states for guidance. For instance, Elbridge Gerry said:

In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme. Hence in Massachusetts the worst men get into the Legislature. Several members of that body had lately been convicted of infamous crimes.

Gerry did not favor a direct vote to the federal legislature.
John Dickinson of Delaware said:

In the formation of the Senate, we ought to carry it through such a refining process as will assimilate it, as nearly as may be, to the House of Lords in England. He repeated his warm eulogiums on the British Constitution.

On the matter of the relationship between the first magistrate and the judiciary, Madison said:

The maxim on which the objection was founded, required a separation of the Executive, as well as the Judiciary, from the Legislature and from each other. There would, in truth, however, be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the supreme tribunal of justice (the House of Lords), formed one of the other branches of the Legislature. In short, whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle or incorrect in their form; the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable.

Thus far, the Bible’s influence has been nil.

The 1787 Constitutional Convention – Without the Help of Moses, the Delegates Debated Judges

June 5, 1787
In a busy session, the delegates debated multiple facets of the judiciary. They agree on a Supreme Court and inferior courts but declined to have the legislature approve them. The delegates debated various aspects of forming an interim government and agreed on a policy of admitting new states into the union.
The delegates cited experience, Scotland, and Athens as foundations for their positions.

Mr. WILSON opposed the appointment of Judges by the National Legislature. Experience showed the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was, that officers might be appointed by a single, responsible person.
Doctor FRANKLIN observed, that two modes of choosing the Judges had been mentioned, to wit, by the Legislature, and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then, in a brief and entertaining manner, related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, in order to get rid of him, and share his practice among themselves. It was here, he said, the interest of the electors to make the best choice, which should always be made the case if possible.

South Carolina delegate Pierce Butler appealed to the Athenian lawmaker Solon to support Butler’s view that the people wouldn’t favor a federal judiciary.

Mr. BUTLER. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon, who gave the Athenians not the best government he could devise, but the best they would receive.

If the delegates wanted to go to Moses and Exodus 18, today would have been a good day for it since they debated the creation of a judicial system throughout the nation. However, there was no mention of Moses or his scheme for addressing the disputes of the Jewish people.

To read all of the posts in this series from May 25 to the present, click here.