Sharia and the Constitution

Michael Gerson
6/21/2011

WASHINGTON -- On the issue of Muslims serving in public office, every explanation by presidential candidate Herman Cain becomes a complication. In three instances Cain affirmed that Muslims would not be allowed to serve in his Cabinet or administration. "Many of the Muslims," he explained, "they're not totally dedicated to this country." Cain then amended his remarks to say that, while Muslims would be allowed to serve, they should be subject to "extra precautions" not applied to Catholics or Mormons.

It is unclear what this would mean in practice. Presidential appointees already swear an oath of the loyalty to the Constitution. I took mine in 2001 in the East Room of the White House -- a solemn and sobering affair. High-ranking officials are subject to an extensive FBI background check, including the disclosure of every place one has lived and every country one has visited. FBI agents questioned an elderly, frightened woman who had been my neighbor 15 years before. She denied ever having laid eyes on me. Cabinet secretaries are given the added scrutiny of a Senate hearing, based on endless pages of intrusive, written questions.

So what additional level of scrutiny, what addendum to the loyalty oath, should be imposed on Muslims? A requirement to forswear sharia law? But what definition, what interpretation of sharia law? Cain's statement is reminiscent of another made by liberal financier George Soros in 2004 -- a similarity which would presumably disturb Cain. "The separation of church and state," Soros said, "is clearly undermined by having a born-again president. Our concern about Islamic fundamentalism is that there's no separation between church and state, yet we are about to erode that here." A president, in this view, must not only be born in the United States but born only once. The intolerant certainty of ethical monotheism is itself a disqualification.

Cain and Soros make the same error. There are, of course, theological expressions of Islam and conservative Christianity that are inconsistent with pluralism -- either Wahhabi Saudi Arabia or John Calvin's Geneva. There are also traditions consistent with pluralism. Sharia law may be interpreted as the replication of seventh-century Medina. It may also be viewed as a moral norm or conception of justice that is variously applied in systems of human law.

The Cain/Soros view rests on the assertion that the most radical expression of a religion is also the most authentic. "Based upon the little knowledge that I have of the Muslim religion," Cain says, "you know, they have an objective to convert all infidels or kill them." Part of this statement is correct. It represents very little knowledge of the vigorous debates among 1.2 billion Muslims -- a few violent, the vast majority not. For the purposes of this debate, it only matters that a diversity of views on sharia exists -- a point beyond question. Determining the genuine or correct version of a religious tradition is beyond the competence and authority of a candidate or the American government.

The Constitution addresses this matter directly. Article VI requires legislative, judicial and executive officials to take a loyalty oath to the Constitution. It continues: "No religious test shall ever be required as a qualification to any office or public trust under the United States." After Charles Pinckney of South Carolina proposed this language at the Constitutional Convention, a delegate to North Carolina's ratifying convention objected that it would allow "pagans, deists and Mahometans" to seek office. It was ratified anyway -- even though many state constitutions at the time contained religious tests. In urging ratification, James Madison dismissed these state restrictions as "less carefully and properly defined" than the federal document. Government service, he argued, should be "open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith."

Imposing a modern religious test is neither likely nor defensible. It is remarkable than any liberal advocate of an evolving Constitution should wish it to evolve in this way. It is equally inexplicable that any conservative defender of constitutionalism should advocate so clear a violation of the Constitution itself.

The whole enterprise of redefining the ground rules for participation in public life in order to encourage suspicion of one faith or group is highly questionable. It is the just the type of power play that Founders aimed to prevent. For them, loyalty to the Constitution was sufficient -- and any religious demand beyond it, illegitimate.

Michael Gerson
Michael Gerson writes a twice-weekly column for The Post on issues that include politics, global health, development, religion and foreign policy. Michael Gerson is the author of the book "Heroic Conservatism" and a contributor to Newsweek magazine.