Does Church-State Separation Apply to Theories of Constitutional Interpretation?

Brian Tamanaha

The question of whether the doctrine of separation of church and state applies to theories of constitutional interpretation may sound confused, irrelevant or implausible, or an obvious affirmative (or negative). But not so fast.

A repeated theme of conservative critics of Bush's nomination of Harriet Miers is that she lacks a developed theory of constitutional interpretation. That remains to be seen. However, based upon news reports that the Bush Administration is selling her nomination to evangelical leaders (with some success) by convincing them of her fundamentalist religious commitment, it is not far fetched to ask whether she may in a certain subclass of cases apply a rule of interpretation that goes like this: When in doubt, interpret the Constitution consistent with the will of God.

Miers hasn't said this, nor would she openly, but leading Christian conservative Dr. Dobson has made veiled assurances to his fellow fundamentalists--"You will have to trust me"--which suggest that this is not an absurd idea.

According to news reports, Miers is a committed member of her church. The below propositions are taken from the Church's statement of beliefs [Impt: see addendum below for correction]:

•We believe that there is one Living and True God, eternally existing in three Persons, the Father, the Son, and the Holy Spirit, equal in power and glory; and that this triune God created all, upholds all and governs all.

•We believe that the Scriptures of the Old and New Testaments are the Word of God, fully inspired, without error in the original manuscripts, and the infallible rule of faith and practice.
....
•We believe that God created this world in 6 days, that He created man in His own image, for fellowship with Himself.

•We believe that life is sacred. It begins at conception and should be held in respect. Abortion to us is the taking of innocent life and should be condemned.

•We believe that God created man and woman for celibacy or a monogamous relationship. Homosexuality is a perversion of God's design and is condemned by Him in the Scriptures. We love the homosexual but denounce the behavior.

•We believe that God is sovereign. Man does not possess the judgment nor the right to determine when one's life should end. Euthanasia is man assuming God's sovereign role and therefore, must be rejected.

The first clause literally holds that these views "govern all." This may be read as the ultimate Supremacy Clause. The final four clauses raise issues now before the Supreme Court or likely to come before it.

Miers has not stated whether she adheres to these propositions or what role they will have in her decisions as a Justice. Perhaps it will have no role at all (though Dobson seems to think otherwise). But there is enough here to make it legitimate--indeed pressing--to ask.

So back to the question: does the separation of church and state apply to theories of constitutional interpretation?

Literally the First Amendment establishment clause does not apply: "Congress shall make no law respecting an establishment of religion..." Although a strong argument can be made that said theory of constitutional interpretation amounts to an "establishment of religion," this does not involve an Congressional enactment.

The only other clause that might apply is Article VI section 3: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

A theory of constitutional interpretation applied by a sitting Justice is not "a Qualification" for Office, so again it would seem not to apply. Indeed, if it applies at all to this situation, it would be to prohibit the apparent demand of certain Senators as a condition of their support that Miers explicitly commit to to overturning Roe (and please don't bother denying that this is a religious test).

So there is no explicit Constitutional provision that would prevent such a theory of interpretation. Invoking the Supremacy Clause is a stretch, because a theory of interpretation like this does not challenge the supremacy of the Constitution--it just tells the judge how to read it.

We can depart the words of the Constitution and resort instead to the notion that the separation of church and state is a constitutional principle, which would prohibit a theory of interpretation like this.

This argument, however, starts out on shaky ground because it is not based upon any directly relevant language in the Constitution. Original intent does not clear up much. For some the separation was to protect the state and for others it was to protect religion. And in either case it is not clear that anyone had a theory of constitutional interpretation in mind. It gets even trickier when one recognizes that scripture was still referred to by judges in the 18th century as a part of the common law (young Jefferson wrote an essay attacking this), and that the Supreme Court referred to natural law principles in a few early 19th Century cases.

The answer is uncertain.

This may all sound like moot speculation. If Miers did apply such a rule of constitutional interpretation, it is unlikely she would ever state it explicitly in an opinion. Nor is there anything that could be done about it (forget impeachment).

For these reasons it is anything but moot right now. Religious conservatives cannot insist that Miers pass their religious test before getting their support for her appointment, then turn around and object to specific questions about whether she would apply a theory of constitutional interpretation like the one stated above.

This is not about treating a person unfairly owing to her religious beliefs, but about knowing how a Justice will interpret the Constitution.


ADDENDUM: Two alert readers of this post have informed me that the list of church principles I have recited does not come from Miers' church, but from a church with the same name in a different location. My apologies for the error. I have not altered the post other than to note this correction because, as one of the readers noted, it has been reported that her own church holds views similar to those listed above. My thanks to the readers for the correction.

ADDENDUM 2: A member of Ms. Miers Church sent me their statement of beliefs to clarify the record. I have reprinted them in full below:

WHAT WE BELIEVE AT VVCC http://www.vvcc.org/beliefsgo.asp

Our beliefs are not innovative. Anyone familiar with historical Christian teaching will find these statements fall well within the boundaries of evangelical theology. (Evangelical means theology derived from the evangel, or the Gospel. In other words, it's biblical theology rather than speculative theology or theology rooted in tradition.)

We try not to be dogmatic about matters on which believers hold divergent views. Our core beliefs are centered in Christ and His message as supported by Scripture. More obscure doctrine, as well as controversial issues about which the Bible is silent, are left to believers to sort out on their own. On these issues we take no official/dogmatic position. What follows is a summary of what we believe.

We believe the Bible to be the only infallible, inspired, authoritative Word of God. As such it is our final authority for all matters of faith and Christian practice. (2 Timothy 3:14-16)

We believe that there is one God eternally existing in three persons- Father, Son and Holy Spirit. He is the Creator of all things. (Genesis 1:1; John 1:1; Matthew 3:16-17; 2 Corinthians 13:14)

We believe in Jesus Christ, God in human flesh, who came to this world to die for our sins and who was bodily raised from the dead. (1 Corinthians 15:1-8 )

We believe in the Holy Spirit, the Spirit of the Living God, who draws people to Christ and who lives in every person who has received Christ. (John 16:8-9; Acts 2:38; Ephesians 1:13-14)

We believe that man, created by God, willfully sinned and as a result is lost and without hope apart from receiving Jesus Christ. (Romans 3:23;6:23; Acts 4:12)

We believe that salvation (forgiveness of sins) is available only by the grace of God through the blood of Jesus Christ. This free gift of forgiveness is offered to all who receive Christ as Lord and Savior. (Ephesians 2:8-9; Colossians 2:6; John 3:16)

We believe the Bible clearly teaches the pattern to receive Christ is to believe in Jesus as God's Son and Savior of the world, repent of personal sin, confess Christ publicly, and be baptized. (Romans 10:9; Acts 2: 36-38; Mark 16:16)

We believe that full immersion under water is the prescribed mode of baptism as indicated by Jesus' own example and command, and best depicts our union in His death, burial, and resurrection. (Mark 1:9-10; Matthew 28:19; Romans 6:4)

We believe that the Church is the body and bride of Christ on earth, founded on the day of Pentecost, consisting of all Christians everywhere. (Matthew 16:13-18)

We believe that death seals the eternity of each person (Hebrews 9:27). Those who are forgiven will spend eternity with God in heaven, those not forgiven will be eternally separated from God in hell. (John 5:28-29; Daniel 12:2; 2 Corinthians 4:14; Acts 17:31)

17601 Marsh Lane | Dallas, Texas 75287 | 972.245.8822| info@vvcc.org|
Posted 11:00 AM by Brian Tamanaha [link]