David Forte explains how the Constitution provides the criteria for evaluating America's best presidents.
Fr. John Courtney Murray (1904-1967) was an American Jesuit priest and theologian of great importance for 20th century Catholicism. Sixty years ago, he published his most important work, We Hold These Truths: Catholic Reflections on the American Proposition. In it, Murray argued that the American constitutional tradition was compatible with Catholic social teaching. Specifically, he contended that the Constitution established a framework for pluralism, or civil debate among groups holding fundamentally incompatible positions. Also, Murray advocated for Catholic participation in these debates, especially with reliance on natural law, as the best way to form an ecumenical consensus among the American people in service to the common good.
Prior to the book’s publication, the Vatican had censored Murray. During the pontificate of Pius XII, Cardinal Alfredo Ottaviani was Secretary of the Holy Office in the Roman Curia, and he censored Catholic theologians who recommended public engagement with non-Catholics or defended religious liberty. Murray was among those Ottaviani had censored—in 1954—until the 1958 coronation of Pope John XXIII. Paul VI kept Ottaviani in the Holy Office but put a stop to his censorship. Once freed, Murray published his tremendous book, which, it is worth noting, received Nihil Obstat from the Censor Librorum Fr. John R. Ready, S. J., and the Imprimatur of the Bishop of Burlington, Robert F. Joyce. In other words, the Church not only tolerated its publication but formally took no issue with any of its contents.
Upon its publication in 1960, We Hold These Truths had an immediate impact not just in theological circles but also political ones. Ted Sorensen, aide to then-Democratic president candidate John F. Kennedy, called Murray and read to him Kennedy’s speech for the Texas Baptists in which the presidential candidate repudiated that he, as a would-be Catholic head of state, would be subject to the authority of the pope. Sorenson claimed to secure Murray’s approval; however, as Murray later revealed, Sorensen had not. One wonders if Sorensen had even read the book. After all, Murray jokes about “the earnest heresies of a Baptist minister from Texas.” Regardless, the public impression of Murray fused with that of Kennedy and the broader sense among American Catholics were first American and then Catholic. They had finally “arrived.”
The cultural high-water point for American Catholics was from 1945 until the early 1960s, and during the Second Vatican Council (1962-1965) American prelates exercised more influence than ever. As peritus (or “theological consultant”) to Cardinal Francis Spellman, Murray influenced drafts of what would become Dignitatis humanae, or the Declaration on Religious Freedom. As Russell Hittinger has argued, Dignitatis humanae was part of the long shift away from an ecclesiology of a Church established in confessional nation-states whose governments interfered with Church affairs to a global Church asserting independent, spiritual authority directly to the faithful. However, soon after the Church endorsed religious liberty, American clergy implemented regrettable liturgical excesses during the introduction of the new Mass. With these two intertwined, American Catholic traditionalists have tended to link a demand for the reversion to the pre-conciliar liturgy, and for the return to the pre-conciliar role of confessional states—a regime that could use coercion and violence to impose a Catholic order from above.
The traditionalists treat Murray as a liberal who attempted to negotiate a compromise between the Church and liberalism, but this interpretation is superficial. To appreciate the contribution Murray made to American Catholicism requires us to do the reading. It is plain in the text that Murray was not a liberal, and We Hold These Truths was not an endorsement of liberalism. On the contrary, Murray repeatedly condemns liberalism. Rather, what one finds is the application of practical reason informed by natural law thinking, and Murray argued that the American Founding preserved enough of the old natural law tradition to rescue it from relativism and serve as a basis for preserving a peaceful consensus in a pluralistic nation. Murray never identified America as the best regime but only provided a defense of the American constitutional order in Catholic terms.
Gelasian Dyarchy and Libertas Ecclesiae
In “Leo XIII and Pius XII: Government and the Order of Religion,” completed between 1952 and 1955, Murray discussed the “Gelasian dyarchy,” or how the Church and state are separate yet interrelated perfect societies with temporal rulers responsible for preserving peace and the conditions for the Church to shepherd the souls of the faithful. Murray denied that Catholic social teaching required America to establish the Catholic Church in the Constitution. Instead, he believed that American Catholics ought to work toward a Catholic constitution in a broader sense of a “shared way of life” by evangelizing the people into the faith. This was quite the challenge. The literal reading of Leo XIII’s language in Immortale Dei (1885) seemed to demand a confessional state, which the pope confirmed in a letter directed to American prelates, Longiqua oceani (1895).
For Murray, the literal reading raised two questions, one general and one concrete. The general question was, “What is the full body of principle which governs the use of legal coercion and constraint in the service of religious truth and moral action?” The concrete question was, to what degree could “the institution of legal establishment [create] a juridical situation within the state, in which it follows by logical and juridical consequence that the force of law is to be used to ‘exterminate’ all manner of dissent from the official state religion”? Writing during the post-war years, Murray eschews the term “coerce” in favor of “exterminate” to emphasize the incredible efficiency with which regimes have proved capable of dissolving dissenters:
Whether dissent is to be “exterminated” by forcibly thrusting dissenters beyond the horizons of physical life, as in the days of the Spanish Inquisition; or by forcibly inviting dissenters to depart from the territorial boundaries of the state, as in the practice of the ius emigrationis in post-Westphalian Europe; or by more gently, but still forcibly, outlawing manifestations of dissent from the order of public existence and confining them to the order of private life, as in the practice of present-day Spain [under Francisco Franco]—these are secondary questions. They merely concern the lengths to which penal law in its various historical stages of development is prepared to go in the process of “extermination.” In all these cases, and in other conceivable intermediate cases, the substantive issue is always the same. It is the issue of legal intolerance and of its juridical premise, the legal institution of a “state religion.”
In Murray’s view, extermination simply could not be the final solution to Church-state relations, but to reach that conclusion required looking past what Leo XIII argued in favor of what he did not argue.
Leo XIII, as Murray noted, never disturbed the millennia-long teaching of the Gelasian dyarchy itself when calling for a Church establishment. Therefore, to establish the Church, according to Murray, could not mean enlisting the temporal power to serve the Church. For the same reason, the temporal power lacked the authority to wield the spiritual sword of the Church. As Murray explained, “The body of the faithful go to Mass on Sunday formally as the faithful, not as the citizenry.” The consequences of ignoring this distinction reduced Catholicism to the errors of Anglicanism, in which a political sovereign who wields the temporal sword to dominate the spiritual domain:
Indeed, there would be no justification in Catholic doctrine for anything like the Edwardian or Elizabethan Acts of Uniformity, by which attendance at church service on Sunday at the Parish church was rendered compulsory, under pain of punishment. In what concerns public acts of worship, the proper function of government is to assist in providing the occasions on which the citizenry and public officials may freely fulfill the obligation imposed up on them divine law.
For Murray, all that was required to establish the Catholic faith, then, was simply to protect the libertas Ecclesiae and rights of conscience. The Church did not and could not endorse a policy of extermination.
The precise nature of government action to establish Christianity was subject to the exigencies of the temporal order, meaning that no arrangement is better than others except insofar as they also served the primary end of temporal power: peace. Leo XIII did not “enshrine a sheer piece of nostalgia for a vanished Golden Age… [or] a return to the past and to its institutional forms as if the Christian effort today were to seek the restoration of a feudal society, or of the medieval regnum and imperium, or the papal suzerainty over political rulers.” Why not? Despite the recurring Catholic tendency to look back to the medieval world as normative for contemporary governments:
Leo XIII was certainly enough of a historian to recognize the defects and imperfections, the immaturities and indeed the evils that marred the medieval achievement. What he is interested in is the principle… [to] furnish the inner form and dynamism of a style of social life which will be fully human because it is Christian.
The difference between divine and human law is like that of the universal and particular, thereby necessarily introducing a “gap” that separates “the things that man ought to do because they are right and good in themselves” and “the things that man can be compelled by law to do because they are necessary for the… public advantage of society.”
This gap is permanent. Any regime requires consulting “general principles of the moral or theological order” as well as the “intermediate set of norms, the norms of jurisprudence and political wisdom” ordered to “a juristic norm, the exigencies of the common good in determinate circumstances.” Consequently, it is “harmony… must… be justified, not only by appeal to the intrinsic necessities of the Christian order in its idea, but also by appeal to the contingent necessities created by the facts of a particular historical situation.” In the case of Catholic Europe, the conditions required Leo XIII to defend not just the Church but also a more paternalistic role of both the Church and state for the citizens of the European nations suffering under sectarian Liberalism. As Murray explains:
What swings Leo XIII to a paternal concept of government is the fact of the imperita multitudo, the ignorant masses…. The ignorant masses are incapable of defending themselves, their culture, their faith, their identity as peoples, against the Revolutionary aggressor. Therefore, it is necessary that government should defend them… Not only [were] the masses incapable of defending themselves; the Church itself [could not] adequately defend them without the powerful assistance of government.
Leo XIII and Murray both understood that the Catholic Europe of the late 19th century simply lacked the civic virtue necessary to resist sectarian Liberal appeals, being as they were in the nonage of the coming democratic epoch.
By contrast, American Catholics at the time have suffered from too much civic virtue, as evinced by problems like trusteeism. Traditionalists today might scoff at the idea that contemporary Americans retain any of that old civic virtue. However, Pope Francis would disagree. In 2015, Congress invited him to speak in their chamber at a joint session. He accepted. During the speech, he called America a “great nation” and, further, said that the sacrifices of people like Abraham Lincoln, Dr. Martin Luther King Jr., Dorothy Day, and Fr. Thomas Merton, OCSO, “shaped fundamental values which will endure forever in the spirit of the American people. A people with this spirit can live through many crises, tensions, and conflicts, while always finding the resources to move forward and to do so with dignity.” He also stressed that he spoke in the spirit of dialogue both with lawmakers directly and with the American people in the hope that he might persuade them of issues he laid out in Laudato Si’ (2015). He ended his speech neither with an anathema nor with a call for a confessional state but with, “God bless America!” In every respect, he approached the temporal power of Congress in the fashion his fellow Jesuit Murray recommended. Traditionalists are in a bind. To agree with the pope is to depart from the traditionalist position, but to disagree with the pope is to disobey the pope. That is very traditional—for Protestants.
Keeping Locke in the Locke Box
Murray had no such dilemma. Rather, he simply assessed the historical conditions of Americans, especially their “intermediate set of norms, the norms of jurisprudence and political wisdom,” to discern how American Catholics could seek peace in temporal affairs and liberty in religious ones. The Declaration of Independence, and much of the Founding more broadly, retained some of the old natural law thinking that had been part of English patrimony from its Catholic days and somewhat preserved in legal traditions to which the Founders were heir. Most significant to Murray was how seriously members of the Continental Congress took the limits of their temporal authority when considering matters of the Catholic Church, especially when contrasted to the Catholic states of Europe.
As Murray recounts from the work of Leo Pfeffer, in 1783, the papal nuncio at Paris noted to the American ambassador, Benjamin Franklin, that the Vicar Apostolic in London could no longer serve as the bishop for the newly independent nation. When Franklin relayed the issue to the Continental Congress, the Congress responded, “the subject of [the nuncio’s] 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.” Murray adds, “the good nuncio must have been mightily surprised on receiving this communication. Not for centuries had the Holy See been free to erect a bishopric and appoint a bishop without the prior consent of government, without prior exercise of the governmental right of presentation, without all legal formalities with which Catholic states had fettered the freedom of the Church.” That America was overwhelmingly Protestant made this development even more astonishing.
It is events like these that prompted Murray to mention the now-famous phrase of 1884 Third Plenary Council, that the American Founders built “better than they knew.” This phrase does not imply that the hand of Providence moved the American Founders into unwittingly establishing the best regime or placed the American people into full obedience under the Catholic Church. Rather, Murray only meant that the temporal arrangements of the American government, as the Framers designed it, proved capable of achieving civic peace and for protecting the libertas Ecclesiae in a fashion that exceeded what they themselves appreciated—and, for that matter, what Catholic confessional states at the time afforded the Church.
In a modern example, Murray refers to a speech by Pius XII, who said, “The duty of repressing religious and moral error cannot therefore be an ultimate norm of action.” This is the theoretical principle that the Church, bearing the spiritual sword, must spread to the faithful. The “intermediate set of norms, the norms of jurisprudence and political wisdom” of the American Founding is found in the First Amendment, which:
…does not say that there is not distinction between true and false religion, good and bad morality. But it does say that in American circumstances the conscience of the community, aware of its moral obligations to peace of the community, and speaking therefore as the voice of God, does not give government any mandate… to repress religious opinions or practices, even though they are erroneous and false.
It is worth remembering that even Leo XIII said to American prelates in Longinqua oceani, “thanks are due to the equity of the laws which obtain in America and to the customs of the well-ordered Republic. For the Church amongst you, unopposed by the Constitution and government of your nation, fettered by no hostile legislation, protected against violence by the common laws and the impartiality of the tribunals, is free to live and act without hindrance” but should go further and enjoy “the favor of the laws and patronage of the public authority.” If anything, Leo XIII underestimated the hardships the American Church experienced at the time. To the extent American bishops lacked state patronage, it was not from lack of trying. American bishops had repeatedly sought state support for Catholic schools, and these efforts generated anti-Catholic fervor and the ensuing Blaine amendments that cut them off from public support. This quibble aside, Murray understood Leo XIII’s desire for liberty of conscience and of the Church; Leo XIII wanted American Catholics to preach to non-Catholics with “mildness and charity [to] draw them to us, using every means of persuasion to induce them to examine closely every part of the Catholic doctrine” most of all using the “force of example” of “Christian virtues.” Not only did Leo XIII respect the freedom of conscience, he expressly understood persuasion and good example could work only because of the very libertas Ecclesiae the American Constitution established and protected.
Murray did not credit any of this to John Locke or any kind of liberalism. He dismissed Locke because of his “rationalism, individualism, [and] nominalism.” In Murray’s view, Locke introduced the state of nature as a “pure postulation.” Locke “naively admits” that the state of nature declines into a state of war because the Lockean individual is “a sort of little god almighty, whose power to preserve himself is checked only at the point where another little god almighty starts preserving himself.” This belief provoked an “evacuation of all reality from the notion of society” rooted in the law of nature understood purely as “a nominalist symbol for a collection of particular empowerments” but rendered “the ‘common good’ [into] nothing real in itself… but simply a symbol for the quantitative sum of individual goods.” Moreover, the French took Locke to his logical conclusions in developing the ideology of the French Revolution, or as he said, “the logical outcome of Locke’s individualistic law of nature, in its French transcription, was the juridical monisms of the successive French Republics.” Even if Locke did not intend the consequences the French reached, they reached them all the same, and they were antithetical both to natural law as well as both the ends of temporal and spiritual authority. Hence, the late Peter Lawler, inspired in equal parts by Murray and the failed Al Gore 2000 presidential campaign slogan, repeatedly warned Americans to “Put Locke in the Locke Box.”
What worried Murray was how to preserve peace in America, given the circumstances of the post-war years. His answer was the preservation of a consensus of citizens in good faith. Like his contemporary, Venerable Archbishop Fulton J. Sheen, Murray understood Americans primarily in terms of their confession of faith, of which he lists of Protestant, Catholic, Jew, and secular. Among the four, there was a sufficient capacity for reasoning about political problems because Americans had institutions rooted in the natural law and its own peculiar preservation of the natural law tradition in its laws and way of life. Murray fretted about this situation, however, as Jews had sided with secular Americans out of concern what Christian majorities could do here like they had in the Old World. Protestants, in Murray’s view, were unacquainted with natural law issues because of the lingering influence of Puritan “anti-authoritarian religious individualism and its concept of the ‘gathered’ church” in contrast to the Catholic emphasis on the common good and the unity of the visible and invisible Church. Things were, in his view, teetering on the edge, most especially because of the wholesale abandonment of natural law thinking in higher education.
The Return of the Exterminators
What of that consensus today? I have written on that subject at Law & Liberty before, but it is worth considering these issues in Murray’s terms. First and most obvious, the Protestants to which Murray referred have changed, with the complete collapse of mainline denominations, the rise of evangelical Protestantism, and the more recent revival of Reformed and Anglican theology in some circles. Among these groups, there has been a great interest in natural law, and the result has been a great deal of inroads between them and Catholics on political and intellectual if not doctrinal matters. Most former mainline Protestants and more liberal Jews have become indistinguishable from a rising secularism much more hostile to religion than it was during the mid-century. Orthodox Jews have begun asserting themselves as patriotic Americans and more open to dialogue with conservative Catholics and Protestants even as the capacity for Americans to use ecumenicism as the basis for public dialogue has declined, as secularists insist it in inherently bigoted.
In the past, national religious leaders like Ven. Fulton Sheen or Dr. Martin Luther King Jr. have been able to articulate a pluralist consensus at least to affirm or challenge the prevailing order. Today, no such leader exists. On the contrary, neo-integralist Catholics today have argued for the withdrawal of American Catholics from the consensus in favor of strategies of domination over American Protestants, Jews, and other religious groups. In short, they wish to rededicate the American Church to the “extermination” that Leo XIII, Pius XII, and Murray himself rejected. Sohrab Ahmari’s famous debate with David French was, at bottom, about whether American Catholics and Protestants could really work together after 2016. Earlier this year, a pair of Catholic scholars, Fr. Thomas Crean, O.P, and Alan Fimister, published a book outlining the general political propositions of neo-integralism, which included denying the unbaptized (e.g. Jews, Muslims) citizenship and, instead, placing their political well-being in the hands of the state. Finally, Adrian Vermeule has eschewed consensus in favor of an alternative scheme of administrative usurpation that would, upon its success, open up American borders to only Catholic nations and whose immigrants would transform the republic into a Catholic monarchy reigning over the “Empire of Guadalupe.” One might be tempted to regard this as far-fetched academic squabbling, but that does not mean it can be ignored, as demonstrated by Vermeule’s recent appointment to the president’s Administrative Conference of the United States.
Neo-integralism is more an effect than a cause. It has slowly dawned on Americans that we have fully entered a new period in which the Cold War coalitions have dissolved. The old consensus Murray examined in We Hold These Truths is dead. Even while pretending to side with social justice, American corporations now align themselves with totalitarian states. Sectarian liberals have co-opted these corporations and the academic institutions that fill them to supplant the old, patriotic civil religion loosely grounded in a Judeo-Christian consensus in favor of a new, “woke” consensus of identity groups contesting for state and corporate patronage. Meanwhile, the moral example Leo XIII called on Catholics to practice has amounted to scandal after scandal, undermining the capacity for Church leaders to offer a clear direction for the faithful in contrast to the woke counter-consensus. Neo-integralists pose as having a solution that the bishops lack, and some fearful Catholics might look to neo-integralists because they have a message and seem willing to fight for it. Does this mean Murray’s thought is obsolete?
It does not. Murray warned of the implicit religiosity in what he called “sectarian Liberalism” that has become the current “Great Awokening.” Moreover, woke politics proves his point about the need for consensus, since its politics is also grounded in consensus. It is held together by a deeply held antipathy for the current president as the embodiment of prejudice and hate. The woke effort to replace him has marshaled a kind of military virtue that St. Augustine noted the Romans possessed when conquering the known world. Once they had nowhere else to conquer, that martial virtue collapsed into decadence and in-fighting. The same will befall the woke consensus. In the meantime, American Catholics should ready themselves to defend libertas Ecclesiae, broadly understood, and leave behind the nostalgia for a by-gone era in America during which Catholics had greater popularity, power, and prestige.
To that end, American Catholics, in a successor to Murray’s old consensus, should continue to make common cause with white evangelical Protestants but also historically African American Protestant denominations, Orthodox Jews, and Muslims to forge a new consensus to order the temporal power of American government to the pursuit of spiritual ends. The most urgent matter is in the formation of new institutions to that end and the deployment of the right spiritual leaders to lead this new consensus in the coming years.