Ristuccia on English History and the Religious Test Clause @GeorgetownLaw
Nathan Ristuccia, Georgetown University Law Center, has published Enlightening Sacrament: English History and the Religious Test Clause. Here is the abstract.
The unamended text of the United States’ original 1788 Constitution contains only one reference to religion. Article VI proclaims that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” This Religious Test Clause has received minimal attention over the last two centuries, and the handful of Supreme Court decisions discussing it provides almost no guidance about its legal effect or original meaning. Eighteenth-century English evidence, in contrast, speaks plainly. During the eighteenth century, “religious test” was a term of art, referring to a narrow category of legislation—exemplified in the English Test Act of 1673—which mandated sacramental participation or confession of doctrine as a prerequisite for office.
This Article, therefore, examines eighteenth-century and early nineteenth-century sources on “religious tests” in both Britain and America. It argues that the American founders borrowed upon a well-established sacramental discourse about “religious tests” when framing and ratifying the Constitution. Indeed, as one Supreme Court opinion notes, “English history pertinent to a religious test oath” and the founders’ “experience [with such oaths] is written into our Constitution.” After highlighting common features of British and American discourse on “religious tests,” this Article argues that clause in its original meaning prevented the federal government from imposing a confession or mandatory ritual but allowed the government to use burdensome oaths of allegiance. This Article closes by sketching how courts can employ that history to give the Religious Test Clause legal effect today.
Download the article from SSRN at the link.