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The Imagined Muslim President, How the Religious Test Passed from the Law to the Voter
In Brief
- When the federal Constitution excluded religious tests for office, its defenders did not deny that a Muslim might be elected; they argued that he could never be chosen but in one of two cases, the first being that Americans laid aside the Christian religion altogether, handing to voters the judgment the law gave up.
- Leaving the religious test to voters does not abolish it: critics argued that voting for or against a man because of his creed imposes the very test the law forbids, and teaches candidates to hide their beliefs.
- The ballot could carry a religious test in several directions: one writer held that sincere Christians should not be voted into the presidency under a secular Constitution, while Latter-day Saints protested a test oath that barred them from voting at all.
- Alexis de Tocqueville, author of Democracy in America, warned that majority opinion becomes the most irresistible power in an age of equality, so that a minority wronged by it has no one left to appeal to.
Main authors
The objection had the merit of candor. In the North Carolina convention called to weigh the new federal Constitution, a delegate named Abbott reported what "many" thought of its exclusion of religious tests: without one, "pagans, deists, and Mahometans" might obtain office, and the senators and representatives might all be pagans [1]. Others warned that the Pope of Rome himself might become President, and a pamphlet was printed to say so [1]. The Muslim in high office was not a neighbor anyone had met. He was a limit case, summoned to show how far an open door could swing.
The answer given by the Constitution's defenders is more revealing than the fear. They did not deny that a Muslim could be elected; they explained that he could be only in one of two cases, the first being that Americans laid aside the Christian religion altogether [2]. The law would stay silent on belief, and the judgment of a Christian electorate would do the screening that no statute was allowed to do. That wager made the American voter two things at once. He became the guarantor of religious liberty, since no oath stood between conscience and office. He also became the last keeper of the religious test, free to impose at the ballot box what the text forbade at the door. The long argument that followed, among freethinkers, Catholic editors, Latter-day Saints and the author of Democracy in America, turned on which of those two roles the voter would play.
A Mahometan at the Convention, and a Bet on Christian Voters
The "Mahometan" of these debates was less a person than a boundary marker. A Catholic monthly, complaining in 1873 that rulers misrepresented the Papacy as a political power, gave Mahomet as the very type of the power that clothes politics in the garb of religion to rouse fanaticism [3]. The figure stood for the fusion of creed and command, the thing a religious test claimed to keep out. The texts did not always fit the type. Tracing political thought in Islam in 1911, Muhammad Iqbal held that it was early understood that sovereignty resides de facto in the people, who embody it by a free act of choice [4]. A magazine essay of 1877 on the duties of public officers even quoted the Koran as an authority on appointing the best-qualified man [5]. What the delegates weighed was a symbol of theocracy, not a constituency.
The defenders of the Constitution did not dispute the prospect; they recast it. One speaker in the state debates began by placing true religion beyond the reach of human laws and warning that no good follows when any government tries to restrain men's consciences [2]. Then he met the apprehension head-on: it was apprehended, he said, that Jews, Mahometans and pagans might be elected to high office. His reply was a forecast, not a principle. Such men could never reach the presidency, he said, except in one of two cases, the first being that the people of America should "lay aside the Christian religion altogether" [2]. The guard at the door was no longer the text. It was the faith of the electorate.
Behind this wager lay a settled distrust of the state as judge of belief. Writing in 1814, John Taylor of Caroline treated freedom of religious opinion as a link in the chain of rights needed to preserve election itself [6]. A government armed to coerce the mind in religion, he reasoned, would add political coercion, and would mould opinion by force wherever it suited its designs. Freedom of opinion, for him, could not be split without being destroyed. The Supreme Judicial Court of Massachusetts gave the same point a time dimension. If legislatures or courts define religious sentiments, it held, what is "religious to-day may be irreligious to-morrow", depending on which sect dominates [7]. A test in law is a test written by whoever holds power.
The argument carried a difficulty its authors left unspoken. If a legal test is dangerous because it records the will of the dominant sect [7], the electorate is where that sect lives. The speaker in the state debates came close to it: the first of the two cases in which he allowed a non-Christian might reach high office was that the people of America lay aside the Christian religion altogether [2]. The law could afford neutrality because the voters were not expected to share it. Religious liberty was secured at the level of the Constitution by being exposed at the level of the ballot.
Massachusetts, the English Parliament and the Silent Federal Text
The federal silence stood out against the laws around it. Surveying the state constitutions, Anthony Trollope found Massachusetts declaring public worship of the Supreme Being a right and a duty, then promising the equal protection of the law to every Christian denomination that behaved peaceably [8]. He judged the arrangement less than honest and asked what became of "those who are not Christians", adding that New Hampshire said exactly the same [8]. The religious test the federal text refused was alive one level down. A citizen excluded from nothing in Washington could still find himself outside the protection of his own state.
Across the Atlantic, the test by law still had open champions. In 1850 Blackwood's Edinburgh Magazine protested that it forced no man to its altars and forbade no man his own, then declared that bringing a Jew into the Parliament of England would injure the Constitution and insult Christianity [9]. The disclaimer is the revealing part. Exclusion presented itself as the protection of religion, not the persecution of a faith. An argument recorded by Georg Brandes in his history of the reaction in France answered that logic in general terms: to refuse Jews civic rights because they are Jews is to punish them for a religion acquired by birth, and where loss of civic rights accompanies a belief there is no religious liberty [10].
At home, the silence had to be defended against those who wanted to fill it. A volume of the History of Woman Suffrage objected that asking Congress to put the name of God in the constitution would pledge the nation to a theological faith and expose dissenters to political ostracism and social persecution [11]. Uriah Smith, opposing amendments of the same kind, reached for a telling argument. Many thousands of professed Christians rejected the Trinity, he noted, and such an amendment would be seen by a large minority, perhaps a majority, as a violation of liberty of conscience [12]. Even the defenders of the empty text counted heads. Their case for leaving God out of the law rested in part on how many voters would resent putting Him in.
The logic of neutrality, followed to its end, abandoned the convention wager altogether. Long after the ratification debates, William O. Douglas wrote in a Supreme Court dissent that government must have no interest in theology, whatever the result: Catholics, Jews, Protestants, a people turned toward the path of Buddha, atheists, or "a predominantly Moslem nation" [13]. That is close to the outcome the earlier speaker had named as the first of two cases in which a Muslim president might happen [2]. The ratifier drew comfort from the improbability of the case. The justice declared the case itself none of the state's concern. Between them lies the whole distance from tolerance by expectation to neutrality by principle.
Ingersoll and the Crawling Candidates, the Test Moves to the Ballot Box
The religious test did not disappear when the law dropped it; it changed address. Robert Green Ingersoll saw this clearly. Government, he wrote, has nothing to do with religion; it is neither Christian nor pagan but secular [14]. Yet as long as people vote for or against men on account of their religious views, hypocrisy will hold place and power, and candidates will "crawl in the dust", hiding their opinions and flattering those they despise [14]. In his account, the cost of the wager fell on honesty. A test at the ballot box does not so much exclude the unbeliever as teach him to dissemble. Ingersoll added that churches were becoming political organizations, with nearly every Catholic a Democrat and nearly every Northern Methodist a Republican [14].
Others drew the constitutional conclusion. A 1915 reader on immigration and Americanization, Phillip Davis's Selected Readings, carries the argument that to impose a religious test by popular vote is "as bad as to impose it by law", and that voting for or against a man because of his creed violates the spirit of the Constitution [15]. The argument strikes at the heart of the convention wager. The very screening the defenders had counted on was, by this reasoning, the forbidden thing itself. L. K. Washburn shifted the principle onto the voter's own conscience: no religious disability should follow from the honest exercise of the suffrage, a man should be protected from the politician and the priest, and he does his highest duty when he votes as he thinks [16]. Washburn's voter is free. Whether he is also fair to the candidate's creed is a question the principle leaves open.
The test at the ballot box could also be turned around. M. M. Mangasarian read the Constitution as a purely secular instrument devoted to the rights of man, and drew from it, as his private opinion, a startling conclusion: a Catholic, a sincere Christian of any denomination, or a believing Jew was not eligible for the presidency [17]. Denying the office to Catholics, he argued, would be no more intolerant than denying it to a foreign-born citizen [18]. Then he passed from eligibility to the vote. It would not be bigotry, he wrote, to hold that a candidate who puts God first and country second should under no circumstances be voted into presidential power [19]. Here the secular text produces a test of its own, and hands it to the electorate in the name of neutrality.
Minorities learned to answer the ballot with the ballot. The Catholic World warned in 1871 that Catholic votes would count on whichever side they were cast, and would never go to a party using its power to suppress their church or to leave minorities at the mercy of an irresponsible majority [20]. What Ingersoll deplored as churches turning into political organizations [14] looked, from inside a threatened minority, like self-defense. Some believers drew the opposite conclusion and left the field. By Mangasarian's account, the United Presbyterians refused even to take part in elections, let alone accept office, under a government that ignored the Christian religion [21].
The sharpest turn came when the test migrated from the office to the franchise. In a discourse claiming religious liberty and the elective franchise as rights, John Taylor protested that Latter-day Saints had been barred from voting without a hearing or a trial and presented with a test oath, which he called illegal and contrary to their rights as American citizens [22]. Charles W. Penrose, in a discourse defending plural marriage as a religious institution and a constitutional right to practise it, described the reading of religious freedom he was contesting: belief is protected, but practice must yield whenever it runs contrary to the views of the great majority [23]. On that reading the majority first decides which faiths may act, then who may vote. The keeper of the test had become its author.
Tocqueville and the Majority That Commands Belief
The wager placed the religious test in the hands of the power Alexis de Tocqueville judged strongest of all. As public opinion becomes the first and most irresistible of powers, he wrote, the religious principle finds no external support able to resist it for long; in ages of equality kings may command obedience, but the majority commands belief [24]. He went further. Whatever the political laws, faith in public opinion would become a species of religion, with "the majority its ministering prophet" [25]. A constitution that entrusted the judgment of creeds to voters had entrusted it to something that, on this reading, was becoming a creed in its own right.
What made this power formidable was the absence of appeal. Tocqueville feared American democratic institutions not for their weakness but for their overpowering strength, and asked where a wronged individual or party could turn: if to public opinion, "public opinion constitutes the majority" [26]. A test written in law can at least be read, contested and repealed. A test exercised ballot by ballot, in private, leaves no text to challenge. John Acton stated the general rule: oppression by a majority is worse than oppression by a minority, because the latent power of the masses, once called into play, can seldom be resisted [27].
The fear has its critics, and they deserve a hearing. A writer in The Arena in 1891 argued that the familiar charge of majority tyranny had the least justification of any in the course of government [28]. Most of the outrages blamed on the people, he contended, were the work of a graceless minority resolved to ignore them, and the most violent acts of despotism had been attempts to ride down the will of the political majority. On this view the convention speaker was right to trust the electorate over the statute book, since statutes are what minorities capture. The objection limits the fear without dissolving it. Its case concerns who governs, not how voters weigh a candidate's creed.
The wager's record may owe less to principle than to temperature. Writing in 1925 on anti-Semitism in the United States, Lee J. Levinger held that religious tolerance grows because religious intensity of the old type weakens: Christians are no longer certain that fellow Christians of other sects will burn in everlasting flames [29]. Even Thomas Jefferson, he added, was tolerant on religion because he was fairly indifferent to it, and reserved his intolerance for political opponents. If Levinger is right, the electorate guards religious liberty best when it cares least about creed. The ratifying-era speaker, more than a century earlier, had named as the first of his two cases that Christians might lay their religion aside entirely [2]. The likelier path was that they would hold it more loosely.
When the federal Constitution refused to require any religious test for office, the fear that pagans, Jews or Muslims might reach the presidency was not refuted but redirected. The Constitution's defenders answered it with a forecast: such candidates could never be elected but in one of two cases, the first being that the American people laid aside the Christian religion altogether. The law withdrew from the judgment of creeds, partly out of distrust of a state that would define belief according to whichever sect ruled, and the electorate inherited that judgment. The critics who followed showed what the inheritance meant. Candidates learned to hide their convictions to please voters, minorities voted as blocs to defend themselves, a secular reading of the Constitution was turned into a case against believers, and test oaths reached the voter himself.
The deeper difficulty is the one Alexis de Tocqueville named: majority opinion is a power with no court above it. Some observers insisted that majorities oppress less than the minorities that capture the law, and the point holds for government at large. But the defender who answered the fear of a Muslim president never claimed that voters would be neutral; the first case he gave for such an election was that they lay aside the Christian religion altogether. The success of the wager has depended less on the clause than on the temper of those who vote, and on how tightly they hold their own faith. The Constitution forbade the religious test. It could not forbid the voter to keep one.
