A reader writes:

When the Constitution and the Bill of Rights were adopted, nine states had religious tests for officeholders and several still had established churches. No one thought that the limits imposed on the federal government applied to the states. There is a good discussion of this subject in Chapter 16 of Gordon Wood’s superb Empire of Liberty, with specific information in the text preceding footnote 13 about the tests then in force. It was only after the passage of the Fourteenth Amendment that the First Amendment’s guarantee of free exercise of religion could be found to apply to the states. It was on that basis that religious tests for officeholders were found by a unanimous Supreme Court to be unconstitutional in a 1961 decision, Torcaso v. Watkins.

Obsolete constitutional provisions don’t repeal themselves; they live on, useless and ignored, like vestigial organs.

Many state constitutions are difficult to amend, often requiring a supermajority of the voters. So it should be no surprise that religious tests still exist on paper in a few places, ignored by everyone with sense. I respect Rachel Maddow, but I respect her a little less after watching this segment. A few religious zealots propose to enforce one of these tests in one town, and she treats it as a serious threat to religious freedom. Those people’s lawyers will tell them they will be wasting their time and money if they sue, and the ACLU will be on the case if they try anyway. It’s not that I think Maddow was wrong to discuss the matter, but she handled it in the shocked and sensationalized way Fox News would handle a story about a child sent home from school for wearing a religious symbol. We don’t need a trumped-up War on Atheism to go with the trumped-up War on Christmas. In addition, I can’t help but think that Maddow was being disingenuous when acted surprised that these state religious tests could exist despite the no-religious-test clause and supremacy clause of the U.S. Constitution. She must know that the illegality of these tests has been settled law since Torcaso based on the First and Fourteenth Amendments. That doesn’t make the words disappear, but it should discourage this kind of “ain’t it awful!” reporting on a real new channel.

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