A “religious test” in the Miers nomination?

Not in the Constitutional sense.

George W. Bush’s appeal to Harrier Miers’s religion as one of her qualifications to sit on the Supreme Court is drawing the rage and contempt it deserves. I’m hoping that libertarians and neoconservatives are learning their lesson about supping with the Devil of politicized fundamentalist Christianity (“Christianism,” as it’s coming to be called, in parallel with “Islamism,” or politicized fundamentalist Islam).

There’s been a little bit of heavy breathing on our side of the aisle about whether choosing a potential Justice based on where she prays might be a violation of the Constitutional ban on religious tests for office, and thus an impeachable offense.

Good try, but no cigar. “Religious test” as used in Article VI refers to a specific institution from seventeenth-century England: the Test Acts, which were designed to keep Catholics out of office by requiring all officeholders to take communion according to the rites of the Church of England, and to swear that they did not believe in transubstantiation.

Certainly the principle of “no religious test” suggests the extreme impropriety of using denominational membership as a screening mechanism or a talking point, but doing so isn’t imposing a “religious test” in the Constitutional sense of that term.

So I reluctantly conclude that the use of religious bigotry by a President in selecting his appointees is stupid, nasty, and unAmerican, but it’s not unConstitutional.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com