Sunday, November 11, 2018

Matthew Whitaker and the No Religious Test Clause

Guest Blogger

Philip Bobbitt

I gather a spokesperson for the Department of Justice---who declined to speak on the record--has been clarifying remarks made by the acting Attorney General, Matthew Whitaker, on a number of constitutional subjects.  Among these is the statement, made in a 2014 debate when Whitaker was a candidate for the Republican nomination for senator from Iowa, in response to a question as to “what criteria” a senator should use in evaluating judicial nominees.  Whitaker is reported to have said, “I’d like to see things like their world view, what informs them.  Are they people of faith?  Do they have a biblical view of justice, which I think is very important…And what I know is as long as they have that world view, they’ll be good judge.  And if they have a secular world view, where this is all we have here on Earth, then I’m going to be very concerned about that judge.”

In the various published commentaries made attacking or defending this position, I have been surprised not to have come across anyone who quotes Article VI of the Constitution that provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Nor is this omission irrelevant to persons interested in constitutional interpretation.  To those who think that the standards for Senatorial confirmation are constitutional in nature, even if there is no role for litigating the matter, ignoring the plain text of the Constitution is disheartening.  It gives further impetus to claims like, "the standards for impeachment are whatever the House finds them to be," "because the pardon power is by its terms unlimited, a president can pardon for any reason he wishes," despite textual commitments to the contrary.

Philip C. Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence and director for the Center for National Security at Columbia Law School. You can reach him by e-mail at pbobbi at

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