Does Cain’s test for Muslims fail the Constitution?

This week I received a piece in which the Tea Party Nation’s Judson Phillips heaps praise upon Herman Cain as someone who “stands in face of political correctness and says what needs to be said”:

On the Glenn Beck show, Herman Cain said he would require proof from Muslims they were loyal to America before they work for the United States government. Here is a transcript of the conversation:

BECK: So wait a minute, are you saying that Muslims have to prove, there has to be a loyalty proof?

CAIN: Yes, to the Constitution of the United States of America.

BECK: Well, would you do that to a Catholic or a Mormon?

CAIN: No, I wouldn’t, I wouldn’t because there is a greater dangerous part of the Muslim faith than there is in these other religions. I know there are some Muslims who talk about but we’re a peaceful religion. …

I’m sure that if anyone asked him Mr. Phillips would emphatically profess to believe that the first duty of the president of the United States (and all other high government officials in the United States) is to abide by the oath or affirmation by which they are bound to support the U.S. Constitution. The paragraph of Article VI that specifies this obligation goes on to make it unequivocally clear, however, that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Both Judson Phillips and Mr. Cain are right to defy the irrational notion that we should require our police or national security forces to ignore the palpable fact that threats against the United States today are largely being fomented in the Muslim world. How can the defenders of either our domestic peace or our national security maintain the vigilance needed to keep America safe if we stupidly command them to shut their eyes to what is now the salient characteristic of those most determined to attack us?

But is physical safety the only thing that they defend? Is it even the principal or most important thing? The oath of public service the Constitution requires gives paramount importance to supporting its provisions for the organization and exercise of government power. Among those provisions are prohibitions and limitations intended to constrain the exercise of power within boundaries that respect the unalienable rights with which all people are endowed by the Creator. Foremost among them is the right of all individuals to live according to a sense of religious obligation determined by their own conscience, free of coercive prohibition by government power.

Herman Cain is certainly aware that the First Amendment withholds from the U.S. government the power lawfully to prohibit the free exercise of religion. But has he thought at all about the connection between that provision and the one that says that no religious test shall ever be required as a qualification for “any office or public trust under the United States”? Mr. Cain apparently believes that in today’s world Americans have good reason to distrust any follower of Islam. But the Constitution explicitly prohibits officials of the U.S. government from applying religion as a criterion for public trust, whatever their individual inclinations. This means that whatever his personal predilections, as president of the United States Mr. Cain (and anyone else elected to that office) would be required to set aside his personal views. He could not as a matter of public policy take the position that an office or public trust under the U.S. government (including a seat on the Supreme Court) would be withheld from someone of the Muslim or any other religion until they dispelled to his satisfaction some prejudice (however justified it seems to him, to me or to anyone else) as to their loyalty.

Does this mean that we must simply ignore the fact that adherence to Islam is chief among the characteristics of those who pose a threat to U.S. security in today’s world? It doesn’t. It does require, however, that U.S. government officials take account of that fact by ways and means that do not treat adherence to Islam as prima facie evidence of disloyalty. Instead, each individual should have to submit to a thorough background investigation. Any questions about their loyalty should be based on the facts that investigation develops as to their words and actions as individuals.

But Alan, you say, that’s what’s supposed to happen already, isn’t it? Don’t existing laws make provision for such background checks? I think that by and large they do. You see, this isn’t the first time America has faced grave threats to its security. It’s not the first time people have been tempted to resort to shorthand group prejudgment as a substitute for carefully developing and evaluating the facts about each individual’s words and actions. Political correctness isn’t the only motive for regretting the ill treatment of Japanese Americans during the World War II era. But what decent American sensibility may demand in general, the U.S. Constitution explicitly demands when it comes to religion. We must judge people as individuals, not as groups or denominations.

Perhaps because I am a Roman Catholic, I am sure that the issue this constitutional provision addresses is not merely an abstraction. There are some people in America today who believe that by itself the fact of my religious denomination proves that I cannot be loyal to the United States. I thank God there are so many decent people whose common sense leads them to do as a matter of course what the Constitution declares to be the Supreme Law of the Land when it comes to using the U.S. government’s power.

As a matter of fact, however, the Constitution may not govern what people do with their secret ballot. I believe in letting conscience be my guide. To be sure it is a conscience formed and informed by my religious faith. Thanks to God’s providence, in the voting booth no human law can interfere with the free exercise of religion. As it turns out, the instruction of my Christian faith agrees with the U.S. Constitution. My judgment of others should not be based on their denomination or any other prejudicial label. As I am called a follower of Christ, I follow His direction. He said “by their fruits ye shall know them.” Judging others by their fruits, in light of God’s justice, it is possible to apply the common sense derived from the combination of good faith and experience. Is it simply a coincidence that this is just what the Constitution also requires of a U.S. president?