Senator John McCain attracted considerable criticism recently when he stated in an interview on beliefnet that he would prefer a Christian to a Muslim president: “I just have to say in all candor that since this nation was founded primarily on Christian principles . . . personally, I prefer someone who I know who has a solid grounding in my faith.” McCain later seemed to back away from that remark when he contacted beliefnet with the following clarification: “I would vote for a Muslim if he or she was the candidate best able to lead the country and defend our political values.” The candidate’s clarification is consistent with Article VI of the U.S. Constitution, which prohibits any “religious test” for public office. As McCain’s new comment rightly suggests, any candidate who agrees to govern by legal and political values should be acceptable to the senator and the electorate, no matter her or his religion.

McCain should also rethink another comment he made about the Constitution during the course of the interview. When asked if he agrees with the “55 percent of Americans [who] believe the U.S. Constitution establishes a Christian nation,” McCain replied:

I would probably have to say yes, that the Constitution established the as a Christian nation. But I say that in the broadest sense. The lady that holds her lamp beside the golden door doesn't say, “I only welcome Christians.” We welcome the poor, the tired, the huddled masses. But when they come here they know that they are in a nation founded on Christian principles.

Does the Constitution establish that the United States is a Christian nation? The expression “this is a Christian nation” was used most famously by Supreme Court Justice David Brewer in an 1892 decision, Holy Trinity Church v. United States. Holy Trinity contracted with an Englishman, the Reverend E. Walpole Warren, to become rector and pastor of their church in New York City. The Alien Labor Contract Law, however, made it “unlawful . . . to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, . . . to perform labor or service of any kind in the United States, its territories, or the District of Columbia.” Under any plain reading of the statute, the contract violated the law, as the lower court had held in ruling against the church. Justice Brewer, however, declined a strict reading of the statute. He looked beyond the law’s words to interpret congressional purpose and the law’s full meaning. After perusing some legislative history, he decided that the congressional reports “concur in affirming that the intent of congress was simply to stay the influx of this cheap, unskilled labor,” not clergy. That argument about congressional intent did not suffice for the justice, however, who then added several paragraphs reviewing the Christian history of the nation. At that point, while proclaiming the United States a Christian nation, Brewer declared: “shall it be believed that a congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?”

Today Justice Brewer sounds like a judicial activist, a character usually disliked by Republican presidential candidates and their political base. Indeed, Justice Antonin Scalia, a Reagan-appointed member of the Supreme Court who is noted for his dislike of legislative history and his willingness to take Congress at the plain meaning of their statutory words, invoked Holy Trinity just last term in a dissent to Justice Stephen Breyer’s opinion in Zuni Public School District v. Department of Education.  Criticizing what he perceived as Breyer’s broad reading of the Federal Impact Aid Program, Scalia bemoaned the “elevation of judge-supposed legislative intent over clear statutory text,” which he hoped the Court had abandoned one hundred years ago, after the mistake of Holy Trinity.

It would be surprising if the senator from Arizona, who is committed to the passage of sound federal immigration laws, would tolerate a Court or justices who read deeper meaning into congressional statutes about aliens and foreigners or, for that matter, any other statutes. But that is the approach to the Constitution that McCain’s interview proposes, as when he states, “I think the number one issue people should make [in the] selection of the President of the United States is, ‘Will this person carry on in the Judeo Christian principled tradition that has made this nation the greatest experiment in the history of mankind?’” The comment suggests that a Muslim president would be acceptable if he or she governed according to Christian principles.

That idea of Christian government is mistaken. The genius of the Constitution is that Jewish, Christian and Muslim presidents all agree to govern by constitutional, not Christian, principles, when they take the oath of office set out in the constitutional text, namely, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” The Constitution does not describe a Christian nation. (Indeed, the Constitution does not even include the words “so help me God” at the end of that oath.)