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Classic American Doctrine

Editor’s Note: This review is part of a University Bookman symposium “John Courtney Murray’s We Hold These Truths, 1960 and Today.”


   

America is a country split apart. There is little room for authentic conversation, civility, and compromise between opponents, Left and Right. Even more disturbing is the rise of ruination of dissenters as a primary tactic in political disagreement. We struggle to know who we are anymore as Americans. To articulate national unity of any kind, other than bromides to egalitarianism and rights-talk, is a rather lonely political appeal. Why then would a sixtieth-anniversary appraisal of John Courtney Murray’s We Hold These Truths (1960), a book that attempts to theorize what Murray calls the “American Proposition,” be timely or even worth reflection? At best, opponents on the Progressive Left and Post-American Right will say: this is just Catholic conservative types whistling past the graveyard of their own failures to assume intellectual leadership in conservatism, to say nothing of their larger failures to formulate America’s public philosophy, post collapse of Mainline Protestantism. “Go ahead, though, show us your museum pieces, Richard. What’s this one called? Old-school Jesuit from the Great American Auto Age.” But if we read Murray with fresh postmodern conservative eyes, in the full light of our country’s failures, we will find new wisdom to work with.

Murray’s significant work in political philosophy is frequently and unjustly dismissed as an antiquated attempt to undergird American constitutionalism with natural law, and that this effort is for an America that no longer exists. Others note that his “American Proposition” traffics in Cold War American pieties of patriotism, American exceptionalism, Lincoln’s greatness, and general optimism about an America that could overcome its problems if it understood itself. Whatever we were, we really aren’t that now.

By stating in our Declaration of Independence that there is truth beyond politics that imparts meaning to our politics, that is, the sovereignty of God, America recognizes the freedom of the soul to pursue truth unhindered by government. 

Certain Catholics specifically note that the book attempted to update the Church in America to American political realities, with the Church needing to be receptive to this learning. In that sense, the book prefigured Vatican II’s imprint in America, which in practice meant a Church with more give and pliancy in its teachings, practices, and expectations. For serious contemporary Catholics, this is no compliment.

To begin with, Murray would see your postmodern cynicism about America, and raise you his pervasive mid-century skepticism that America would be held together if the American Proposition could no longer be proved, a prospect he found likely. He is not bullish about America, and writes as a Catholic and patriot for a country that he believes is losing touch with its bedrock truths. Murray does not write to make the Church safe for America, nor is he the kind of “Spirit of Vatican II” type who wants Sister to wear her J.C. Penney pantsuit instead of her habit. He means to engage America as a Catholic thinker of the first order, deepening American political truths with a comprehensive sense of the ideas, laws, and institutions that made America possible. Part of his case builds on a rich foundation of natural law and then Murray applies it to unique situations created by American pluralism. There is also a manifest desire to help Americans think coherently about law and coercion. In this sense, Murray challenges the vestigial Puritan spirit in our country that constantly desires a law or a rule to proscribe disliked conduct. Murray points to what the law can and cannot realistically regulate.

Murray reports that people ask how American democracy can tolerate Catholicism. The question, he says, is “invalid and impertinent” and an inversion of values. The question for Catholics, Murray asks, is “whether American democracy is compatible with Catholicism.” God, then Country. We are in the hands of a serious Catholic, an American, and an incredibly learned Jesuit, who is bringing all of his theological, philosophical, and political tools to bear on the problems of our republic.

American Proposition

Murray begins his argument about the American Proposition by rooting it in the Declaration of Independence as interpreted by the statesmanship of Abraham Lincoln: “It is classic American doctrine, immortally asserted by Abraham Lincoln, that the new nation that our Fathers brought forth on this continent was dedicated to a “proposition.” That proposition is both theorem and practice rooted in the truths we hold as Americans that “all men are created equal.” As such, it is planted in a realist epistemology that there are truths about man’s God-breathed dignity, we know them, and we make them the basis of our government. The Proposition has multiple parts that come under stress in different times, and we must constantly prove it to be true. Lincoln vindicated “all men are created equal,” doing so most poignantly in the Gettysburg Address. This part wasn’t merely under stress, but actively denied with bullets.

Murray’s full account of the Proposition notes that we are crucially a nation under God. There is no hint in the American tradition of political atheism, no connection between our constitutionalism and the autonomy of man and reason found in the French Revolution. By stating in our Declaration of Independence that there is truth beyond politics that imparts meaning to our politics, that is, the sovereignty of God, America recognizes the freedom of the soul to pursue truth unhindered by government. Government stands, ultimately, limited by the providence of God. Lincoln’s phrase, “This nation under God,” is American doctrine at its best, Murray says.

The Proposition receives further content from “Constitutionalism, the rule of law, the notion of sovereignty as purely political and therefore limited by law, the concept of government as an empire of laws and not of men.” Murray notes that these are ancient doctrines America has received that were “planted in the British tradition at its origin in medieval times.” This formal content undergirds public deliberation among the various communities and groups within America and it must be guided by that deliberative purpose to preserve civil peace and freedom or it slides into decadence.

What should be reached through this deliberative process is a consensus that shapes how the country will handle the political and economic choices it faces. The consensus builds on the Proposition and is not a discussion about ends—free economy, republican government, individual liberty, associational life—but about the means that will best realize these ends. Murray says that when the ends are in dispute then you can be sure that the political order is tottering. This consensus is not ideological or formulaic; it does not produce coin-in-slot, turn-the-handle results. It is also not fixed but capable of growth as new circumstances and factors emerge and demand new responses. Decay of the consensus can occur if deliberation breaks down under the influence of ideological parties or barbarism, both of which make political dialogue impossible.

The tradition of America, Murray underlines, is a pluralistic one. The Proposition defends the integrity of pluralism and the civility that makes it possible. Murray defines four primary groups: Protestant, Catholic, Jew, and secularist. We would add to this list, and note how the differences, particularly for devoted members of Catholic, Protestant, and Orthodox Jew have shrunk considerably. A devout Southern Baptist easily finds more in common with a devout Catholic than a mainline Protestant. The federal government takes no particular side among the groups but preserves space for each one to live according to the truth as they see it. But this is not merely neutrality. The Proposition’s truth about government under God remains true. This excellent truth is born of the ancient teaching of the “freedom of the Church,” that now finds its modern embodiment, Murray argues, in the First Amendment and its speech, religious, and associational protections. The original school of freedom for Western man, Murray contends, was in the church’s freedom to govern itself and its members separate from the state. Here was the spark that lit the flames of civil society.

Two Swords

Freedom of the church was poignantly declared by Pope Gelasius I in the fifth century as a truth of human existence under God and with government: “there are two things by which the world is principally ruled: the sacred authority of the Bishops and the royal power.” The Church stands higher in man’s loyalty and devotion because it leads the human person to salvation. Government, however, retains man’s devotion in regard to the authority of law because man is everywhere born into the natural association of political society. The essential truth is that the Church is immune from the civil power for its primary purposes of preaching the Word of God and forming its members in the faith. Of course, freedom of the church seems a misfit in a hyper-pluralist society and in modernity overall, Murray notes. Therefore, it became freedom of conscience. Murray suggests this is a diminishment from freedom of the church. In this regard, Murray suggests that James Madison’s famous account of religious conscience in his “Memorial and Remonstrance” is anticlerical because there is no suggestion of a corporate religious body or clergy in it, a rather strange omission. It’s a contortion of religious practice.

The upshot for the American Proposition is that the First Amendment is pro-religious belief and practice, ensuring that Americans are both citizens and creatures and given the space to learn, believe, and practice what they regard as the truth about themselves. The religion clauses, Murray stresses, make little sense if we do not presume that religious practice is good. Why protect religious exercise if it is detrimental to citizens and the country? And the design of the Free-Exercise Clause and the Establishment Clause interrelate by prohibiting a national religious establishment to ensure the free exercise of religious faith. Free exercise of religion, Murray says, stands higher than the prohibition on establishment of religion. As such, America’s charter document firmly limits federal power to secure religious practice. Freedom of the church is not listed, as such, in the First Amendment but the language used does extend beyond individual rights and insulates corporate religious bodies from government intrusion.

Murray gives an insightful example from 1783 where a papal nuncio in Paris sent a letter to Benjamin Franklin requesting permission to establish a diocese in America. Franklin relayed the correspondence to the Continental Congress who responded as follows: “the subject of his application to Doctor Franklin being purely spiritual, it is without the jurisdiction and powers of Congress, who have no authority to permit or refuse it, these powers being reserved to the several states individually.” These states soon declared their lack of jurisdiction over such matters. Murray adds, “In the United States the freedom of the Church was completely unfettered; she could organize herself with full independence that is her native right.” For Murray, the lived practice of the freedom of the church is integral to the separation between civil society and political society in America. The real promise of American life was that life could be lived in both spheres but that political society would understand the limits of its powers and how those limits made possible a life of freedom and virtue for citizens.

Certain parts of Murray’s barbarian catalogue leap at you. Much of our country this summer has either lived under, or worried about living under “force and fear.” Language in the public square now increasingly reduces the human person to race, class, and gender. You are either ontologically a victim or ontologically an oppressor and this totalitarian logic now grips us.

Law Unbound

Our problem is that we have moved away from believing in the efficacy of civil society to lead us to virtuous ends and a flourishing life. We clamor for more government, in virtually every sphere. Compounding our problems is that the underlying unity of the American Proposition has faded. As the transgender debate signals, we now struggle to even agree on who the human person really is. We define our commitment to the republic by the transfer payments we receive, and by our inviolable rights, stretching like an accordion, to encompass every willful desire of the postmodern mind. Our public obligations begin and end with our wills, not a reasonable discussion about what our common good might be and what that might require of us.

Murray noted that the barbarian stands at the door when argument becomes impossible or “when men cease to talk together according to reasonable laws.” His longer description is worthy of consideration:

Society becomes barbarian when men are huddled together under the rule of force and fear; when economic interests assume the primacy over higher values; when material standards of mass and quantity crush out the values of quality and excellence; when technology assumes an autonomous existence and embarks on a course of unlimited self-exploitation without purposeful guidance from the higher disciplines of politics and morals; when the state reaches the paradoxical point of being everywhere intrusive and also impotent; possessed of immense power and powerless to achieve rational ends; when the ways of men come under the sway of the instinctual, the impulsive, the compulsive. When things like this happen, barbarism is abroad …

Certain parts of Murray’s barbarian catalogue leap at you. Much of our country this summer has either lived under, or worried about living under “force and fear” because of sustained rioting and protesting, and attacks on the very legitimacy of law enforcement. Language in the public square now increasingly reduces the human person to race, class, and gender. You are either ontologically a victim or ontologically an oppressor and this totalitarian logic now grips us.

We are incapable of appealing to “the higher disciplines of politics and morals” to integrate technology into a worthy use for human dignity because we struggle to agree on anything regarding morality and how ethical politics might guide us. Our federal regulatory apparatus is immense and yet it primarily benefits the powerful and the established corporate elites. Confidence in the federal government is not a generally observed or felt attitude in America. We are able to communicate with everyone, yet our statements are marked by “instinctual, impulsive, compulsive” needs and not respectful and reasonable argument.

America stands at a crossroads, and the options before us, should we choose to live as one nation under God and the law, are not clear. We begin by making “a metaphysical decision about man.” Murray believed that the chief problem facing America was that we struggled to believe in the truth about man’s dignity and freedom because we resigned ourselves to a rationalist and scientific humanism that blandly accepted evolutionary progress in society forged by science, technology, and an unsupported conviction in man’s transcendent autonomy.

Many conservatives have thought the problem in America has been a vague moral relativism over the past generation, but that openness to limitless possibilities has inverted itself to an insistence on identity providing authentic meaning to human existence. This is the phenomenon of identity politics and intersectionality that is better understood as identitarian Marxism. Our racial and gender identities are how we access power and enforce our will upon the world. The law should uphold victim groups in a manner separate and higher than for “heteronormative” whites. Ideas, institutions, legacies, symbols that can be associated with “whiteness” must be expunged from public discourse and space. The totalitarian logic here leads to concentration camps. We have reached a dead end.

There is only one path forward for us as Americans, and that is the natural law that anchors and holds together our governing institutions and the political deliberation that sustains them. This is the upshot for Murray’s book and why it remains perennially true. Many claim that natural is beside the point, but we might express dramatically that we are failing because progressive law, egalitarian law, individualism law, secularism law, gender law, have proven incapable of building a civic order worthy of our devotion. Each time these elements of law move to the forefront, man’s misery with himself stands further revealed, and it produces social confusion and anger.

We need a concern for rights that undergirds the individual but that knows the organic society and the relational nature of man. We need to match progressivism in our concern for the worker while refusing to absorb us into economic class warriors. We need to reject the narrow rationalism of secularism while affirming the full potential of reason to know what is real. We know that we must update our moral categories and ethical thinking about law as experience reflects on the changing data of a pluralist and commercial society. We aim to give every person their due, but this change builds on our human nature, it does not abolish it. As Murray said, “the doctrine of natural law offers a more profound metaphysic, a more integral humanism, a fuller rationality, a more complete philosophy of man in his nature and history.”

What else is there at this point? Our rendezvous must be with the reason in man that is created and sustained by an eternal order of reason found in “God’s majestic will.” 

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on August 10, 2020 at 16:26:08 pm

It was a pleasure reading this well attuned sounding into our current predicament, a vexatious set of Gordian Knots.

And the Catholic allusions can be set aside, for what is being summoned can be articulated in purely philosophical terms, natural law and natural rights, without the intrusion of religious doctrine as such. For example:

"Free exercise of religion, Murray says, stands higher than the prohibition on establishment of religion."

This is necessary from any well and responsibly reasoned point of view simply on the basis of recognizing the aporetic quality of our knowledge, our knowing, the delimited power of our ability to know, in the strong and positive sense of the term. It is a question for epistemology, a question that results in a need to acknowledge our limitations and the delimitations we are faced with, both in ultimate and in penultimate, i.e. this-worldly, terms. Which is why, of course, raw, tyrannical, harshly demanding power asserts itself, demanding a kowtowing subservience of others. Hence:

"Language in the public square now increasingly reduces the human person to race, class, and gender. You are either ontologically a victim or ontologically an oppressor and this totalitarian logic now grips us."

Such is indeed a totalitarian epistemology and logic, a tyrannical demand for subservience embedded within and thus perverting language itself. Thus the particularly perverse, insidious and pernicious quality of the Gordian Knot we are faced with. Thus too its vexatiously perduring quality, its obdurately confrontational cast, for it is genuine metaphysical rebellion, demanding control of language itself, thus our very minds. Mind in the mode of spirit, but also and even at the quotidian level of ratiocinating deductions. I.e. a genuine totalitarianism, demanding of us elisions and occlusions - proscriptions - as certainly as it demandingly prescribes as well.

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Michael Bond
on August 12, 2020 at 14:23:56 pm

The basis of the Declaration of Independence is a fundamental belief in God. But if scientific materialism destroys faith in God, then the fundamental principles of our Republic are null and void and man is free to develop his answers.

Sudden changes happen unexpectedly, in the course of history, much like markets reversing on popular and "expert" opinions. In a Forbes magazine article, in the 1990s, futurist George Gilder forecasted that the new century will be the century of faith! Mr. Gilder is a very broadly informed person and I puzzled over the basis of his prediction. I now suspect he fully understood the ramifications of quantum physics and the discovery of the double helix of DNA which secular humanism wanted to avoid but ultimately will not be able to remain ignorant to its meaning.

Scientific materialism has been destroyed by the sciences itself but there is tremendous timidity in coming out and saying so. Dr. Stephen Meyer's new book "The Return of the God Hypothesis" may well be one of the critical turning points of this new century. Dr. Meyer's book will be out next year. Currently available on Kindle from Amazon.

Just one sample: Prof. James Tour, a very eminent scientist, on the total improbability of life developing out a prebiotic soup. It's not possible with standard chemistry. There has to be an enormous input of information:
https://www.youtube.com/watch?v=zU7Lww-sBPg&t=1174s

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Jake Peachey
on August 16, 2020 at 21:42:17 pm

Oh, Stephen Meyer and another intelligent design (ID) book, again!
But thank you for the YouTube link to Dr. Tour's presentation, as I had not heard of him before. Unfortunately, from about 19:49 in your YouTube citation, he says: "Everybody is clueless on this but nobody wants to admit it". My less than expert examination of the origin of life (aka autobiogenesis) indicates credible researchers do admit there are major gaps in understanding the steps that may have occurred going from inorganic to organic to bio chemistry some billions of years ago (even when aided by various candidate catalysts). But Tour ignores the aphorism that "absence of evidence is not evidence of absence".

The YouTube web page now includes an Update citing others critical of the Tour video and his commentary. L&L is not the forum to debate autobiogenesis, ID, or the Darwinian Theory of Evolution, so my point in this reply is simply to indicate there are credible counter arguments and critics who would respond very negatively to your comment if they were to see it (i.e., people with expertise way beyond what I have).

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R2L
on August 16, 2020 at 22:00:19 pm

The DOI says "... the Laws of Nature and of Nature's God..." and does not necessarily require a "fundamental belief in God" to be its basis. Readers from 1776 to the present have had to make their respective interpretation of that language and not all of them accept the literal versions or implications of the Judaeo-Christian scripture, heritage, and tradition. Fortunately we all have the 1st Amendment to help secure our rights to freedom of conscience and/or to hold various religious beliefs.

I may have spoken too soon in my previous reply concerning L&L not being an appropriate forum to discuss the Darwinian Theory of Evolution. To the extent that our political philosophy continues to focus on human nature as part of human rights, then the evolution of said human nature (physical and mental) might occasionally be an appropriate topic of discussion.

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R2L

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.