When Ratifying Conventions Argued Over Article VI's Ban on Religious Tests

Picture the scene, and picture it solemnly. A meetinghouse in the winter of 1788, packed with farmers, ministers, lawyers and merchants, all of them believers, most of them churchgoers every Sunday of their lives. And the question on the floor is whether the new Constitution has abandoned God because it forbids the government to ask whether an officeholder believes in Him. Today a politician would answer that question with a focus group. In 1788 they answered it with Scripture, history and argument, and the best answer came from the devout.

That is the story worth telling about the last clause of Article VI. It was controversial when it was written, it was defended by people of deep faith, and it still has something to say to Christian voters who weigh a candidate's character, including his faith, when they mark a ballot.

The clause and its company

The words come at the end of Article VI, Clause 3:

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.

Two details in that sentence are easy to miss.

1. "Oath or Affirmation." Quakers and some other Christians read Christ's instruction to "swear not at all" as forbidding oaths. The Framers let them affirm instead. That is a religious accommodation written into the same sentence as the test ban, and it tells you the drafters were thinking carefully about believers, not around them.
2. "Under the United States." The ban applied to federal offices. The states kept their own religious tests for years afterward, and the clause did not touch them. The federal government was simply forbidden to impose one.

Charles Pinckney of South Carolina proposed the ban at the Convention. When it came to a vote on August 30, 1787, Roger Sherman of Connecticut, a devout Congregationalist, said he thought it unnecessary, because the prevailing liberality of the country was security enough against such tests. The delegates adopted Pinckney's motion without a dissenting vote; North Carolina alone voted no on the article it was added to, with Maryland divided. The clause passed with remarkably little debate in Philadelphia. The debate came later, in the states.

The world of state religious tests

To understand the objections, you have to see what was normal in 1788. Most of the states that had written constitutions after independence required some religious qualification for office.

• Pennsylvania's constitution of 1776 required legislators to declare belief in one God, the creator and governor of the universe, and to acknowledge that the Scriptures of the Old and New Testament were given by divine inspiration.
• Delaware's constitution of 1776 required officeholders to profess faith in God the Father, in Jesus Christ, and in the Holy Ghost, and to acknowledge the Scriptures as divinely inspired.
• North Carolina's constitution of 1776 barred from civil office anyone who denied the being of God, the truth of the Protestant religion, or the divine authority of the Old or New Testament.
• Massachusetts's constitution of 1780 required certain officers to declare that they believed the Christian religion and had a firm persuasion of its truth.
• Maryland's Declaration of Rights of 1776 required officeholders to declare a belief in the Christian religion.

These were not fringe arrangements. They were the inherited assumption of a Protestant people who had grown up under the English Test Acts, which for generations required public officers in England to receive communion in the Church of England. Americans had chafed under the English tests as dissenters, and then many of their states turned around and wrote softer, broader tests of their own.

So when the federal Constitution said "no religious Test shall ever be required," it was not ratifying the status quo. It was breaking with the practice of most of its own member states. That is why devout delegates objected. They were not cranks. They were asking a fair question: in a Christian country, why should the national government be the one place where Christianity cannot be required?

Ellsworth answers in Connecticut

The most careful early defense came from Oliver Ellsworth of Connecticut, who had been a delegate at Philadelphia and would later be Chief Justice of the United States. Ellsworth wrote a series of newspaper essays under the pen name "A Landholder," and in one of them, published in December 1787, he took on the religious test objection directly.

His argument, in outline, ran like this.

1. A test cannot see into the heart. The only thing a test can require is a profession, a sentence spoken aloud. An honest man who doubts will refuse to say it. A dishonest man will say anything. So a test keeps out the scrupulous and lets in the unprincipled, which is backwards.
2. Tests have been engines of persecution. Ellsworth pointed to English history, where tests had been used to shut dissenting Protestants out of office. Americans, many of them descendants of dissenters, should know better than anyone what a state-defined orthodoxy does.
3. No single denomination should be preferred. A test that favored one body of Christians would shut most Americans out of office, and whoever wrote it would decide which believers counted.

Notice who is making this argument. Not a skeptic, but a Calvinist from Connecticut who would go on to serve in the Senate and as Chief Justice. His case was not that religion does not matter to public life. It was that religion matters too much to be handed to politicians as a gatekeeping tool.

The Massachusetts convention

Massachusetts debated ratification in Boston in January and February of 1788, and the test clause came up more than once. Several delegates, among them Major Thomas Lusk, complained that under the new Constitution there was nothing to stop a person of no religion, or of a disfavored one, from being elected to high office.

The answers came largely from ministers. Isaac Backus, the leading Baptist voice in New England and a lifelong campaigner against the established church in Massachusetts, defended the ban. Backus had spent years arguing that the state's support for Congregational churches violated the conscience of Baptists, and he saw a federal test as one more instrument of the same error. His point was that God alone is judge of conscience, and that religious tests had served to keep good men out of office while admitting the hypocritical. Another clergyman, the Reverend Daniel Shute of Hingham, made a similar defense: no test could be framed that would admit every good man and exclude every bad one, and any test would end up excluding someone of real worth.

The convention ratified on February 6, 1788, by 187 to 168. The test clause was not the deciding issue, but it was one of the points where believers on the Federalist side carried the argument on believers' terms. The broader Massachusetts story, including the recommended amendments that eased ratification, is in Massachusetts Saved the Constitution in 1788 by Ratifying and Asking for More.

North Carolina, July 1788

The fullest exchange came in North Carolina, at the convention in Hillsborough in late July 1788. North Carolina's own constitution required officeholders to accept the truth of the Protestant religion, so the federal ban was a sharp contrast.

Delegates raised the worry plainly. Henry Abbot, a Baptist minister, reported that some of his neighbors feared that without a test the nation might one day have officeholders who were not Protestants, and that the treaty power might be used to establish a foreign religion. Others echoed the concern that the clause opened federal office to anyone at all.

James Iredell, a Federalist lawyer who would soon sit on the first Supreme Court, answered at length. His argument, paraphrased closely, went in four steps.

1. Tests are historically the tool of persecution. Every society that had imposed religious tests had used them, sooner or later, to exclude and punish someone for conscience. America had been settled in part by people fleeing exactly that.
2. Congress has no power over religion. The Constitution gives the federal government enumerated powers, and none of them reaches religion. The fear of an established foreign church had no hook in the text.
3. Excluding others undermines our own freedom. Iredell asked, in effect, how Americans could exclude any group of people for their beliefs without abandoning the very principle of religious liberty they claimed for themselves.
4. The people remain the judges. If a non-Christian were ever elected to office, Iredell pointed out, it would be because the people chose him. The Constitution did not forbid voters from caring about a candidate's religion; it forbade the government from making religion a legal qualification. The people could be trusted to judge for themselves.

North Carolina did not ratify that summer. On August 2, 1788 the Hillsborough convention voted 184 to 84 to neither ratify nor reject, and it adjourned on August 4 without ratifying, largely because the delegates wanted a bill of rights first. The state ratified in November 1789, after Congress had sent the proposed amendments to the states. But the religious test debate there remains the clearest window into how devout Americans reasoned their way to the ban.

The objection, stated fairly and answered

Let me state the best case against the clause, in terms its defenders would accept. A free government depends on virtue, and virtue depends on religion; Washington said as much in his Farewell Address. A people who believe that officials will answer to God are safer than a people who rely on paper limits. So why not require officials to profess the faith that underwrites the oath they take? The oath itself, after all, calls on God as witness. A man who does not believe in God, the argument goes, takes an empty oath.

It is a serious argument. Here is why the ratifiers rejected it.

1. The objection assumes a test works. It does not. A test measures only willingness to say words. A man without faith but without scruples will say them. The man who will not lie about his faith is the one a test keeps out. Ellsworth's point is unanswerable on this ground.
2. The objection assumes the right people write the test. Every test must define orthodoxy. In 1788, Baptists, Quakers, Catholics, Methodists and Congregationalists could not agree on that definition, and most of them had suffered under someone else's. A test the majority wrote would bind the minority's conscience, and the minority knew it.
3. The objection confuses the voter with the state. The clause binds the government, not the electorate. Iredell's answer is decisive: the people may still weigh a candidate's faith, character and moral seriousness. What they may not do is have the law do their weighing for them.
4. The objection underrates the Founders' wager. The Founders believed that religion would be stronger, not weaker, if it stood on its own. Two centuries of American revivals, church planting and religious charity, all without a federal test or a federal church, suggest the wager was a good one. Faith that needed a government credential to survive would not have been worth much in the first place; faith that thrives without one is the faith the Founders trusted.

Washington himself, writing to the Hebrew Congregation in Newport in 1790, described a government that gives "to bigotry no sanction, to persecution no assistance." That was the clause's spirit stated in eight words.

What followed in the states

The federal ban set an example the states slowly followed. Over the next decades, state after state dropped or narrowed its religious tests. Maryland's requirement of a declaration of belief in God survived into the twentieth century, until the Supreme Court in Torcaso v. Watkins (1961) held that the state could not refuse a notary public's commission to a man who would not declare such a belief. Torcaso rested on the First and Fourteenth Amendments, not on Article VI, but it finished what Article VI began at the federal level. Several state constitutions still contain old test language on paper, unenforceable since Torcaso, a reminder of how normal tests once were.

The religion clauses of the First Amendment, adopted in 1791, extended the logic: no establishment of religion, and no prohibition on its free exercise. We take those sixteen words phrase by phrase in Sixteen words on religion in the First Amendment, read phrase by phrase, and the original meaning of the establishment clause in No Law Respecting an Establishment Meant Something Specific in 1791.

What the clause asks of voters now

There is a modern confusion worth clearing up. Some commentators now treat any public mention of a candidate's faith as a violation of the spirit of Article VI. That gets the clause precisely backwards. Article VI forbids a legal test imposed by the government. It does not forbid citizens from asking candidates about their convictions, from weighing whether a nominee's faith shapes his view of human dignity, or from preferring candidates whose moral commitments they share. Iredell said in 1788 that the people would be the judges. He meant it as reassurance.

The flip side is just as important. When senators question a judicial nominee in a way that suggests a sincere believer is unfit because of the doctrines of her church, they are not imposing a legal test, but they are flirting with the spirit of one. The clause's lesson cuts both ways: judge people by their character and their public record, and do not treat any faith as disqualifying in itself. Believers, of all people, should hold that line, because the history of religious tests is a history of believers being the ones shut out.

For more on how the Founders connected faith and free government, see Why Washington's Farewell Address called religion and morality indispensable.

The case in brief

1. Article VI forbids any religious test for federal office and lets officials affirm rather than swear, an accommodation for Christians who would not take oaths.
2. In 1788 most states had religious tests, so the ban was a real departure, and devout delegates fairly asked why.
3. Believers answered them: Ellsworth in Connecticut, Backus and Shute in Massachusetts, and Iredell in North Carolina all argued that tests exclude the honest and arm persecutors.
4. The clause binds the government, not the voter; citizens remain free to weigh a candidate's faith and character.
5. The ban has protected religious liberty for every denomination, which is why people of faith should defend it.

What you can do: read Article VI, Clause 3 on the site's Constitution page, then look up your own state constitution's religion provisions and see whether old test language is still on the books.