A Wall of Separation?

"Original Unintentions: The Franchise and the Constitution" by Forrest McDonald, in Modern Age (Fall 1998), P.O. Box AB, College Park, Md. 20740.

Should judges interpreting the Consti-(1958). Nevertheless, he warns, "the tution be guided by the original intentions of Constitution contains both more and less the Framers? Yes, says McDonald, a leading than is visible to the naked eye." More, historian who teaches at the University of because certain features of the document Alabama and is the author of We the People: "refer to previously existing institutions, con-The Economic Origins of the Constitution stitutions, laws, and customs that are nowhere defined in the Constitution itself." And less, because the Framers sometimes failed to accomplish with their words what they intended to accomplish.

It is clear, for instance, that the Framers intended, as Article 6 states, that no religious test be required as a qualification for public office. This meant, as Edmund Randolph explained in the Virginia ratifying convention in 1788, that men of ability and character "of any sect whatever"—but not of no sect—would be able to serve in the federal government. Yet elsewhere in the Constitution, McDonald contends, the Framers not only failed to prevent religious tests from being imposed, "but even in some instances actually incorporated such tests. Unintentionally."

The Framers said in Article 1, Section 2, that the electors for members of the House of Representatives "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," and in Article 1, Section 3, that senators shall be "chosen by the Legislature" in each state (a practice that was abandoned in 1913, with enactment of the 17th Amendment). But some states, such as South Carolina, Rhode Island, and Connecticut, had religious tests for voters and officeholders. Delaware insisted that its legislators state that "I, AB, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration." Maryland and Massachusetts, says McDonald, "required their legislators to be of ‘the Christian religion’; Georgia, New Hampshire, New Jersey, and South Carolina required that they be of ‘the Protestant religion.’ " Of the 13 states, only New York and Virginia did not impose any religious qualifications for legislative service.

Although the Supreme Court has often cited Thomas Jefferson’s notion of a "wall of separation" between church and state, McDonald—noting that Jefferson had nothing to do with the writing of the First Amendment or the Constitution—says that his statement "must be read in light of an important distinction. Several state constitutions, even when imposing religious qualifications for voting and officeholding, expressly forbade active ministers of the Gospel from holding public office.... For the Founders, to mix church and state was to invite dissension and disorder; to separate religion and state was to invite mortal peril. The difference is useful to bear in mind."