fbpx

We Need a Theory Worthy of Our Practice of Liberty

The political landscape in which We Hold These Truths was published sixty years ago is almost unrecognizable today. The Cold War was well under way, yet far from over. The Civil Rights movement had already had some success in the 1954 Brown decision, but its greatest moments were still to come. The Catholic Church was at the height of its cultural powers in the United States. Bishop Fulton Sheen had recently ended his television series (1952-57), the seminaries were full, and Catholic schools at all levels were thriving. Today when a bishop appears on television, he is likely “taking the knee” before the pieties of left-wing liberals, or on his way to jail. It is hard to imagine a more different time.

The enduring value of Fr. John Courtney Murray’s book is the implicit understanding that the Church has always had a political problem. Better stated, perhaps, the Church has always had a problem with politics. Let me make this understanding more explicit.

Born in rough conditions due to the administrative dictates of a transnational bureaucratic empire, the Second Person of the Trinity was executed by the same. All the Apostles died likewise, executed by the Roman administrative state, except for John, who escaped boiling oil. The Church, built on the blood of the martyrs, was persecuted until it was decriminalized by an emperor who converted only on his deathbed. About a century later, the Sack of Rome was blamed on the Christians, prompting Augustine to write his magnificent City of God against the Pagans, which is not an entirely successful defense against the charge.

The Middle Ages are often held up as a moment of Catholic integration of church and state, but every successful effort to rise above petty kingdoms was a return or escape to the political form of the Roman empire, partially or even “holy.” If Virgil was an honest guide through the underworld, the Renaissance was not much better than the Early Modern period which followed it. From the French Revolution onwards, the Church has found itself under direct assault in almost every country of Europe, at one time or another.

One moment of true political success was the opposition to Soviet Communism by St. John Paul II, yet even this was a repudiation of the Vatican’s earlier policy of Ostpolitik, or an accommodationism that leaned towards appeasement. Alas, the present Pontifex Maximus is building so many bridges to Beijing even the Disney Corporation might blush at the obsequiousness. In short, the Church has a problem with politics.

Discovering what might be learned today from Murray’s book is complicated by the way in which its very date is tangled up with the major political and social changes and, at the same time, with the liturgical and theological changes that occurred just afterwards. As much as we might wish, the Constitution of 1787 has been significantly altered (with and without amendment) since that time. And the parochial and liturgical fulness that characterized the Church prior to Vatican II or, to be fair, the “spirit of Vatican II” can be found in only a few parishes, but certainly not in a whole diocese. Not even close.

Maybe Locke got a few things right, which he did, if the history of nations that never had or have abandoned that list above can be entered as evidence. Admitting as much does not mean abandoning the natural law.

Which way the causality runs between the social and political changes of the sixties and the liturgical and theological changes is a complicated question. Patrick Deneen finds one way to cut the Gordian knot by arguing that both are the result of the naturally caustic effects of Lockean liberalism. Interestingly, Ryszard Legutko has argued in The Demon in Democracy that those processes have played themselves out in the short time since the emancipation of Eastern Europe. Legutko’s concern is that Poland, among other nations, has been forced to accept a philosophical system—democracy devoid of beauty, truth, religion, and the nation—that is antithetical to both its historical culture and a more noble understanding of human liberty. Fr. Murray’s attempts to distance the American Experiment from Lockean nominalism suggests he would agree with these analyses, which explains his argument that America is not a fundamentally Lockean state.

How do we deal with the irony that the parts of America most likely to adhere to natural law principles on matters such as abortion, marriage, gender ideology and the like are the most “Lockean” parts of the country?  These parts cling to their guns and religion, as the former President said, rather than race headlong into the progressivist future. Property rights, contracts, markets, free speech, self-defense, family and religious toleration sound awfully Lockean. Or are the true inheritors of John Locke the woke capitalists such as Disney, an American company that balked at doing business in the state of Georgia because of a fetal heartbeat bill but thanked the administrators of Xinjiang province in China for their assistance filming there. (The Babylon Bee’s satirical take says it all: “Disney Editing Blunder: This Uighur Concentration Camp Can Be Clearly Seen In The Background Of ‘Mulan’.”) Maybe Locke got a few things right, which he did, if the history of nations that never had or have abandoned that list above can be entered as evidence. Admitting as much does not mean abandoning the natural law.

If the Founders did build “better than they knew,” it is because they built better than the philosophers they read. They were not ideologues, but practical men exercising their practical wisdom. The Constitution of 1787 was the result of hard negotiation, compromise, and no little arm twisting. Montesquieu is the author most cited in the Federalist Papers, but of those citations most are about the separation of powers, an idea that can be implemented in any number of ways, given historical and political reality. There are certainly elements of modern philosophy in the Founding, but it is impossible to understand the American regime as merely that. To paraphrase Publius, while much reflection and choice went into the Constitution, there was nonetheless a great deal of accident and force.

James Patterson ends his engaging reflection on the thought of Fr. Murray with a call for new institutions and leaders to forge alliances with non-Catholic religious believers. That is hard to criticize, except to say we have lost almost all the institutions we once had. Where Catholic universities are not officially hostile to the teachings of the Church, their faculties largely are. One might say the same about the bishops. Only a handful would dare lead anywhere other than in the direction the leftmost forces of the culture would take them. Indeed, Patterson largely acknowledges as much in his description of the “traditionalist paradox”: devotion to the pope means devotion to a pontiff more willing to “kneel before the world” than any before, to use the words of Jacques Maritain.

We can find instruction if we return to Patterson’s description of the Gelasian dyarchy as “separate but interrelated perfect societies.” The key word there is “perfect.” In context it means something more along the lines of self-sufficient, but it should remind us how unlikely it is to find perfection in politics. Indeed, it is striking how clearly the American Constitution was built upon what G.K. Chesterton called the only empirically demonstrable tenet of the Christian faith: original sin. The Founders foresaw neither the governing of men by angels nor the perfection of human nature. This realism about the fallen world might be something St. Thomas would recognize.

When Aquinas addressed the question of toleration, he explained that, just as God allows evils to exist because eliminating them would cause greater evils, so too must government. This is the natural law in practice. He even cited Augustine’s advice not to close brothels: “If you do away with harlots, the world will be convulsed with lust” (ST II.II 10.xi). This is the kind of response the practical men in Philadelphia would have appreciated, even if not always for statesmanlike reasons. Nevertheless, they, like Aquinas and Augustine before him, understood that political life takes place in the vale of tears, not behind a veil of ignorance, nor even in a vaguely sacramental regime, as our integralist friends would have it.

Aristotle described democracy as the opportunity for diners to judge the meal they are served. On this same principle, a younger contemporary of Fr. Murray, the fellow Catholic and public intellectual, William F. Buckley, Jr. could prefer to be governed by the good burghers of Boston than by the faculty of Harvard. Rule by the people is not an empty platitude. Our shared political life is shared, or it should be. Once the rulers are separated from the ruled, it really isn’t politics anymore but a barely concealed oligarchy, which is not better for being an oligarchy of the Ivies. The federated republic of the Constitution, with its checks and balances, filtering mechanisms, and even room for a natural aristocracy, is one of the best examples we have of trying to make human laws out of the natural law. Where we fail, the fault lies in ourselves.

Fr. Murray’s We Hold These Truths is a clear-eyed analysis of the bumptious, raucous, sometimes violent political world of, to use a description from Richard Reinsch and the late Peter Augustine Lawler, “meddlesome political idealists and vulgarly self-indulgent, morally indifferent pirates.” They were describing the culture unique to the combination of Puritans and adventurers that founded the nation, but it is equally appropriate to all fallen humanity. The American Constitution is especially suited to such people. Partisans of any other form of government must be asked how they do not rely on something akin to the angelism or utopianism that the founders had the wisdom to reject.

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 November 18, 2020 at 08:02:04 am

“When Aquinas addressed the question of toleration, he explained that, just as God allows evils to exist because eliminating them would cause greater evils,”

Sin is sin whether one resides in public or private, for private morality and public morality cannot serve in opposition to one another.

It is nonsense to suggest that God allows evil to exist because eliminating evil would cause greater evils.

Although, at the end of the day, it is still, a Great Mystery, God, The Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, The Author Of Love, Of Life, And Of
Marriage, does not desire evil to exist because Perfect Love is the absence of evil.

Love is a Gift given freely from the heart, and only by desiring to overcome that which is evil, can we freely accept Salvational Love, God’s Gift Of Grace And Mercy, Poured Out for all who desire to repent and be transformed Through Christ, In The Unity Of The Holy Ghost.

God tolerates evil because Love is not possessive, nor is it coercive, nor does it serve to manipulate for the sake of self gratification, but God Wills that all will come to Know The Way, The Truth, And The Light (Life ) Of Love, The Word Of God Made Flesh, and become transformed through Salvational Love.

The Sacrifice Of The Cross, Is The Sacrifice Of The Most Holy, “For God So Loved us, that He Sent His Only Son...”

And Christ Has Revealed Through His Life, His Passion, And His Death On The Cross, that No Greater Love Is There Than This; To Desire Salvation For One’s Beloved.

How can anyone claim to be desiring Salvation for one’s beloved, if they condone sinful behavior?

read full comment
Image of Nancy
Nancy
on November 18, 2020 at 09:07:15 am

"Although, at the end of the day, it is still, a Great Mystery,..."

Yes, "a Great Mystery" which we are not meant to understand.
Job offers that awareness of the great mystery of evil. It is missing in Aquinas, who sought to explain what he could not know.

read full comment
Image of paladin
paladin
on November 18, 2020 at 08:53:57 am

Is that all there is?
If that's all there is, my friends, then let's keep dancing.

The four essays of this Forum are all but intellectually incoherent. Each uses Fr. Murray's opus as a springboard to little of value, natural law as a segue to nowhere that I can recognize. And one essay does not meaningfully relate to the others.

If that's all there is, then Thomas Mann's disillusionment with life is also the proper pose on our politics, because the natural law fails to live up to expectations; it has no existential purpose, no significant role in our governance.

Yet, other public minds say otherwise, that that's not all there is. Hadley Arkes, Thomas West, Robert George, Randy Barnett and Clarence Thomas come to mind. Perhaps that's because there is much more and what there is they say better, with superior focus and purpose, and with more cohesion and clarity. Perhaps it's just a matter of recognizing the possibilities and then using the elements of style to describe them.

L&L's Forum should do better than to induce disappointment that's borderline disillusionment.

read full comment
Image of paladin
paladin
on November 18, 2020 at 09:31:51 am

When people speak of the question of toleration for some reason people always point to John Locke, the assumption that the American understanding of the question of toleration comes from Locke. This is by no means totally true. The experience of the protestant view of toleration predates Locke, as one can look to not only John Milton, but to Roger Williams, the founder of the Colony of Providence Plantations (which later merged with Rhode Island (the Bay Islands and landmasses to the East and just North of the main Island)). William's position of toleration predates Locke and rests on very Augustinian logic.

read full comment
Image of Clifford Angell Bates, Jr
Clifford Angell Bates, Jr
on November 18, 2020 at 12:46:18 pm

Thank you for pointing that out! John Locke was inspired by Sir Edward Coke's protege, Roger Williams--one of the world's great Champions of Liberty. For those who don't know, he was a leader of the Protestant Reformation and came the America an an exile. Highly recommend the excellent biography by John M. Barry "Roger Williams and the Creation of the American Soul: Church, State, and the Birth of Liberty" (Penguin). You will also want to read Dan Jones' history of "Magna Carta: The Birth of Liberty" (Penguin).
You will also need several editions of the Bible: Torah, Septuagint, Jerome's Latin Vulgate, Wycliffe's English Bible, The Geneva Bible 1560 &or 1599, Calvin's "Institutes" (Beveridge Translation), Matthew's Bible, King James 1611, Cambridge updated KJV 1767 or Aitken's 1783.
The view of Liberty held by America's founding generation is a multi-faceted and vigorous trunk of the Judeo-Christian Natural Law Tradition which has its origins in the self-governing federated republic of ancient Sumer ("Amagi" means "freedom from tax slavery") and descended from there through both Jewish and Greco-Roman law and philosophy. It came together in the Early Christian Church and from there came down through the Roman Catholic and Orthodox Greek churches, then the Protestant Reformation, the Scottish Enlightenment, Radical Whig political philosophy (Trenchard & Gordon, who wrote in the "Independent Whig": "The Decalogue, or the Law of the Ten Commandments, delivered by God himself from Mt. Sinai with great Glory and astonishing Circumstances, was little else but the Law of Nature reduced into Tables, and expressed in Words of God's own chusing [sic]." 1720)
It is necessary to study those Commandments (Exodus 20, Deuteronomy 5, Matthew 5, 6 & 7) to understand the Self-Evident Truths of the Declaration of Independence, because it cannot possibly be government's purpose to protect the Liberty of the people if it is defined as freedom from any kind of control.
There is more to this subject than people realize. And it turns out the Founders did leave their definition for us in their writings. But, it is like going on a treasure-hunt to find it.

read full comment
Image of Karen Renfro
Karen Renfro
on November 18, 2020 at 15:33:37 pm

excellent comment

read full comment
Image of paladin
paladin
on November 18, 2020 at 11:08:09 am

With regard to Aquinas putting "natural law into practice" with regard to toleration, I suppose this too is the practical application of natural law : "With regard to heretics two points must be observed: one, on their own side; the other, on the side of the Church. On their own side there is the sin, whereby they deserve not only to be separated from the Church by excommunication, but also to be severed from the world by death. For it is a much graver matter to corrupt the faith which quickens the soul, than to forge money, which supports temporal life. Wherefore if forgers of money and other evil-doers are forthwith condemned to death by the secular authority, much more reason is there for heretics, as soon as they are convicted of heresy, to be not only excommunicated but even put to death."

read full comment
Image of JC
JC
on November 18, 2020 at 13:32:43 pm

I think more can be gained by personally considering major, available documents more than past commentary on the documents. The pertinent documents covering this essay span more than 4 millennia: from about 1800 B.C. until the chaos democracy has wrought in the U.S. republic of 2020. I review the documents, in my interpretation, below.

An ancient Mesopotamian (before Abraham) opined in Genesis 1:28 that woman and man are charged to constrain chaos on earth. The reporter portrayed the assigning authority as “God,” an innovation to the popular polytheisms of the era. Competition to identify or specify “God” bemuses humankind from considering much less accepting the responsibility for peace on earth. Probably, no two believers own the same God, and few people are intolerant of infidelity: constraint of chaos seems a distant dream.

In 1215, Magna Carta established a Catholic-Parliament partnership to rule the British Empire under King John.

In 1689, the English Bill of Rights specified a Protestant Monarchy.

In 1774, the English-American colonial Articles of Association complained that “[Catholic] Quebec [was influenced] to act with hostility against the free Protestant colonies.” The authors also objected to the African-slave trade.

The 1776 colonial Declaration of Independence made no attempt to usurp spiritual power and cited resistance to chaos on earth by “the Supreme Judge of the world.” “The good People” staked their lives and families on their intentions. So far, military power more than fidelity seems the secular judge.

The framers, in the 1787 U.S. Constitution furthered the humble-integrity the founders expressed in 1776. The attribution of ultimate statutory justice to posterity’s “ourselves and our Posterity” offended some framers, and only 39 of 55 were signers.

In the 1791 Bill of Rights, the politically adolescent first Congress re-instated by tradition the British-colonial-church-state-partnership that is constitutional in England. Objections to Catholicism prevail in American politics, and that, too, fuels U.S. bemusement from 1776 and 1787 intentions.

I work for the “ourselves” of 2021 to amend the First Amendment in order to promote U.S. humble-integrity rather than freedom of religion.

(Incidentally, for the 2020 “ourselves and our Posterity,” obsolete copyright-rules seem more like censorship than defense of property. I wondered if “a veil of ignorance” borrows words from John Rawls; both Chrome and Bing opined, YES. I point this out in self-interest. I do not feel inclined to reference publications when 1) all my opinion is founded on humble-integrity respecting prior expression and 2) the internet empowers people to discover origins of old phrases. Anyone who thinks I plagiarized in writing “humble-integrity” or “the-ineluctable-truth” or “a-god-facing-death” can do the work to present evidence rather than attempt arbitrary power to censor. With ineluctable-evidence, I will gladly acknowledge my prior ignorance. After all, the value of humble-integrity, the-ineluctable-truth, and the perfectibility of the unique person should be self-evident, once articulated.)

read full comment
Image of Phillip R Beaver
Phillip R Beaver
on November 18, 2020 at 13:50:48 pm

“We Need a Theory Worthy of Our Practice of Liberty.”

I suppose if we are free to dissent against sin, without interference, for sin can never serve for The Common Good, then, we can continue to have both Liberty and a Happy Death.

https://onepeterfive.com/antonio-socci-benedict-xvi-warns-of-a-new-totalitarianism/

read full comment
Image of Nancy
Nancy
on November 30, 2020 at 22:59:10 pm

No, we need practice that’s worthy of our theory of liberty.

The Constitution is consummately-high theory:
- No person shall be deprived of life, liberty, or property without due process of law.
- All legislative Powers herein granted shall be vested in a Congress of the United States … The executive Power shall be vested in a President of the United States of America. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
- The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution …

In my two books, The Constitution Needs a Good Party and rConstitution Papers, I articulate the practice we’re missing. As Richard Epstein would say, the practice is simple:
- The practice that’s needed to separate powers begins with the content of bills: a statute that constitutionally separates powers must consist entirely rules and sanctions. This can be ensured by requiring that it’s not unreadable, it doesn’t direct the executive or the judiciary, it doesn’t delegate legislative authority, it doesn’t include any content that misleads, and it doesn’t exceed the enumerated powers.
- The practice that’s needed to get the Constitution supported by government people is to create at least one good party that applies separated powers, enumerated powers, and offsetting powers to the party organization, and whose elected representatives use their constitutional powers against others in government to limit government.

We haven’t lived up to the Constitution’s aspirations. But let’s start now.

read full comment
Image of James Anthony
James Anthony

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.