Religious Liberty in the American Law

Authors

Carl ZollmanFollow

Abstract

When the convention which framed the federal constitution assembled in Philadelphia in 1787 religious tests as a qualification for office were actually a part of the constitutions of most of the thirteen original states.' While Massachusetts2 and%,Maryland3 required from certain state officers only a declaration of a belief in the Christian religion, the fundamental law of Georgia, New Hampshire, New Jersey and North Carolina4 limited such belief to the Protestant religion and was designed to require a positive and affirmative test and not merely the negative qualification of not being a Roman Catholic.0 The Delaware, North Carolina and Pennsylvania constitutions7 further required an acknowledgment that both the old and new testaments are given by divine inspiration." The constitution of Pennsylvania in addition exacted a confession of a belief "in one God, the creator and governor of the Universe the rewarder of the good and the punisher of the wicked," 9 while the Delaware fundamental law imposed a veritable confession, of faith professing "faith in God the Father, and in Jesus Christ his only son, and in the Holy Ghost, one God blessed for ever more."'0 The practical difficulties the way of formulating a federal religious test satisfactory to the various states under these circumstances were overwhelming. The diversity in the religious faiths then still established in many of the states precluded any harmonious action looking to such a test. The staunch little state of Rhode Island the only one of the original thirteen states which had never had a religious establishment or religious test would never have joined the union if such a test had been imposed. Devout religionis'ts and violent anti-religionists in convention therefore joined their forces in opposing such a test and pointed out the extreme dangers and difficulties of attempts connect ine civil powers with religious opinions and to exclude dissenters from participation in the public honors, trusts, emoluments, privileges and immunities. The result was not merely negative but distinctly positive. Not only was no federal religious test adopted but a provision was incorporated into the federal constitution to the effect that "no religious test shall ever be required as a qualification to any office or public trust under the United States."", It is too clear for argument that this provision does not by its letter or-spirit forbid religious testi on the part of the various states. The existing provisions on this matter in the various states were therefore not invalidated by-it and the adoption of new provisions such states ivas not thereby prohibited. While it has had a potent influence on the various states and has been more or less literally copied into most of the existing state constitutions" it should be overlooked that remnants of such tests still linger in a number of them. Accordingly the constitutions of Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee and Texas' 3 still require the bare acknowledgment or lack of a denial of the existence of a Supreme Being as a test certain offices, while Pennsylvania and Tennessee in addition exact a belief in a future state of rewards and punishments."4 It is curious to note that such provision in the case of Mississippi and Tennessee very inconsistently is linked with another provision which forbids all religious tests and that in the case of Texas. and Maryland it takes the form of an exception from an otherwise absolute prohibition of religious tests.1" It requires no prophetic vision to predict that these last faint remnants of an outworn condition of affairs will eventually be eliminated so that no person will oi account of his religious belief or disbelief be legally disqualified from holding any public office, employment or position of trust of any kind within the United States.

Recommended Citation

Carl Zollman, Religious Liberty in the American Law, 17 Mich. L. Rev. 355 (1919).
Available at: https://repository.law.umich.edu/mlr/vol17/iss5/2