Works By John Courtney Murray, S.J.
The American Proposition
1. E PLURIBUS UNUM
2. CIVIL UNITY AND RELIGIOUS INTEGRITY
3. Two CASES FOR THE PUBLIC CONSENSUS
4. THE ORIGINS AND AUTHORITY OF THE PUBLIC CONSENSUS
5. CREEDS AT WAR INTELLIGIBLY
E PLURIBUS UNUM
The American Consensus
AS IT AROSE in America, the problem of pluralism was unique in the modern world, chiefly because pluralism was the native condition of American society. It was not, as in Europe and in England, the result of a disruption or decay of a previously existent religious unity. This fact created the possibility of a new solution; indeed, it created a demand for a new solution. The possibility was exploited and the demand was met by the American Constitution.
The question here concerns the position of the Catholic conscience in the face of the new American solution to a problem that for centuries has troubled, and still continues to trouble, various nations and societies. A new problem has been put to the universal Church by the fact of America—by the uniqueness of our social situation, by the genius of our newly conceived constitutional system, by the lessons of our singular national history, which has molded in a special way the consciousness and temper of the American people, within whose midst the Catholic stands, sharing with his fellow citizens the same national heritage. The Catholic community faces the task of making itself intellectually aware of the conditions of its own co-existence within the American pluralistic scene. We have behind us a lengthy historical tradition of acceptance of the special situation of the Church in America, in all its differences from the situations in which the Church elsewhere finds herself. But it is a question here
of pursuing the subject, not in the horizontal dimension of history but in the vertical dimension of theory.
The argument readily falls into two parts. The first part is an analysis of the American Proposition with regard to political unity. The effort is to make a statement, later to be somewhat enlarged, of the essential contents of the American consensus, whereby we are made "e pluribus unum," one society subsisting amid multiple pluralisms. Simply to make this statement is to show why American Catholics participate with ready conviction in the American consensus. The second part of the argument, to be pursued in the next chapter, is an analysis of the American Proposition with regard to religious pluralism, especially as this proposition is embodied in our fundamental law. Again, simply to make this analysis is to lay bare the reasons why American Catholics accept on principle the unique American solution to the age-old problem.
THE NATION UNDER GOD
The first truth to which the American Proposition makes appeal is stated in that landmark of Western political theory, the Declaration of Independence. It is a truth that lies beyond politics; it imparts to politics a fundamental human meaning. I mean the sovereignty of God over nations as well as over individual men. This is the principle that radically distinguishes the conservative Christian tradition of America from the Jacobin laicist tradition of Continental Europe. The Jacobin tradition proclaimed the autonomous reason of man to be the first and the sole principle of political organization. In contrast, the first article of the American political faith is that the political community, as a form of free and ordered human life, looks to the sovereignty of God as to the first principle of its organization. In the Jacobin tradition religion is at best a purely private concern, a matter of personal devotion, quite irrelevant to public affairs. Society as such, and the state which gives it legal form, and
the government which is its organ of action are by definition agnostic or atheist. The statesman as such cannot be a believer, and his actions as a statesman are immune from any imperative or judgment higher than the will of the people, in whom resides ultimate and total sovereignty (one must remember that in the Jacobin tradition "the people" means "the party"). This whole manner of thought is altogether alien to the authentic American tradition.
From the point of view of the problem of pluralism this radical distinction between the American and the Jacobin traditions is of cardinal importance. The United States has had, and still has, its share of agnostics and unbelievers. But it has never known organized militant atheism on the Jacobin, doctrinaire Socialist, or Communist model; it has rejected parties and theories which erect atheism into a political principle. In 1799, the year of the Napoleonic coup d'etat which overthrew the Directory and established a dictatorship in France, President John Adams stated the first of all American first principles in his remarkable proclamation of March 6:
President Lincoln on May 30, 1863, echoed the tradition in another proclamation:
The authentic voice of America speaks in these words. And it is a testimony to the enduring vitality of this first principle—the sovereignty of God over society as well as over individual men—that President Eisenhower in June, 1952, quoted these words of Lincoln in a proclamation of similar intent. There is, of course, dissent from this principle, uttered by American secularism (which, at that, is a force far different in content and purpose from Continental laicism). But the secularist dissent is clearly a dissent; it illustrates the existence of the American affirmation. And it is continually challenged. For instance, as late as 1952 an opinion of the United States Supreme Court challenged it by asserting: "We are a religious people whose institutions presuppose a Supreme Being." Three times before in its history—in 1815, 1892, and 1931—the Court had formally espoused this same principle.
THE TRADITION OF NATURAL LAW
The affirmation in Lincoln's famous phrase, "this nation under God," sets the American proposition in fundamental continuity with the central political tradition of the West. But this continuity is more broadly and importantly visible in another, and related, respect. In 1884 the Third Plenary Council of Baltimore made this statement: "We consider the establishment of our country's independence, the shaping of its liberties and laws, as a work of special Providence, its framers `building better than they knew,' the Almighty's hand guiding them." The providential aspect of the matter, and the reason for the better building, can be found in the fact that the American political community was organized in an era when the tradition of natural law and natural rights was still vigorous. Claiming no sanction other than its appeal to free minds, it still commanded universal acceptance. And it furnished the basic materials for the American consensus.
The evidence for this fact has been convincingly presented by
Clinton Rossiter in his book, Seedtime of the Republic ( New York: Harcourt, Brace and Co., 1953.), a scholarly account of the "noble aggregate of `self-evident truths' that vindicated the campaign of resistance (1765–1775), the resolution for independence (1776), and the establishment of the new state governments (1776–1780)." These truths, he adds, "had been no less self-evident to the preachers, merchants, planters, and lawyers who were the mind of colonial America." It might be further added that these truths firmly presided over the great time of study, discussion, and decision which produced the Federal Constitution. "The great political philosophy of the Western world," Rossiter says, "enjoyed one of its proudest seasons in this time of resistance and revolution." By reason of this fact the American Revolution, quite unlike its French counterpart, was less a revolution than a conservation. It conserved, by giving newly vital form to, the liberal tradition of politics, whose ruin in Continental Europe was about to be consummated by the first great modem essay in totalitarianism.
The force for unity inherent in this tradition was of decisive importance in what concerns the problem of pluralism. Because it was conceived in the tradition of natural law the American Republic was rescued from the fate, still not overcome, that fell upon the European nations in which Continental Liberalism, a deformation of the liberal tradition, lodged itself, not least by the aid of the Lodges. There have never been "two Americas," in the sense in which there have been, and still are, "two Frances," "two Italys," "two Spains." Politically speaking, America has always been one. The reason is that a consensus was once established, and it still substantially endures, even in the quarters where its origins have been forgotten.
Formally and in the first instance this consensus was political, that is, it embraced a whole constellation of principles bearing upon the origin and nature of society, the function of the state as the legal order of society, and the scope and limitations of government. "Free
government"—perhaps this typically American shorthand phrase sums up the consensus. "A free people under a limited government" puts the matter more exactly. It is a phrase that would have satisfied the first Whig, St. Thomas Aquinas.
To the early Americans government was not a phenomenon of force, as the later legal positivists would have it. Nor was it a "historical category," as Marx and his followers were to assert. Government did not mean simply the power to coerce, though this power was taken as integral to government. Government, properly speaking, was the right to command. It was authority. And its authority derived from law. By the same token its authority was limited by law. In his own way Tom Paine put the matter when he said, "In America Law is the King." But the matter had been better put by Henry of Bracton (d. 1268) when he said, "The king ought not to be under a man, but under God and under the law, because the law makes the king." This was the message of Magna Charta; this became the first structural rib of American constitutionalism.
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—these were ancient ideas, deeply implanted in the British tradition at its origin in medieval times. The major American contribution to the tradition—a contribution that imposed itself on all subsequent political history in the Western world—was the written constitution. However, the American document was not the constitution octroyee of the nineteenth-century Restorations—a constitution graciously granted by the King or Prince-President. Through the American techniques of the constitutional convention and of popular ratification, the American Constitution is explicitly the act of the people. It embodies their consensus as to the purposes of government, its structure, the extent of its powers and the limitations on them, etc. By the Constitution the people define the areas where authority is legitimate and the
areas where liberty is lawful. The Constitution is therefore at once a charter of freedom and a plan for political order.
THE PRINCIPLE OF CONSENT
Here is the second aspect of the continuity between the American consensus and the ancient liberal tradition; I mean the affirmation of the principle of the consent of the governed. Sir John Fortescue (d. 1476), Chief Justice of the Court of King's Bench under Henry VI, had thus stated the tradition, in distinguishing between the absolute and the constitutional monarch: "The secounde king [the constitutional monarch] may not rule his people by other laws than such as thai assenten to. And therefore he may set uppon thaim non imposicions without their consent." The principle of consent was inherent in the medieval idea of kingship; the king was bound to seek the consent of his people to his legislation. The American consensus reaffirmed this principle, at the same time that it carried the principle to newly logical lengths. Americans agreed that they would consent to none other than their own legislation, as framed by their representatives, who would be responsible to them. In other words, the principle of consent was wed to the equally ancient principle of popular participation in rule. But, since this latter principle was given an amplitude of meaning never before known in history, the result was a new synthesis, whose formula is the phrase of Lincoln, "government by the people."
Americans agreed to make government constitutional and therefore limited in a new sense, because it is representative, republican, responsible government. It is limited not only by law but by the will of the people it represents. Not only do the people adopt the Constitution; through the techniques of representation, free elections, and frequent rotation of administrations they also have a share in the enactment of all subsequent statutory legislation. The people are
really governed; American political theorists did not pursue the Rousseauist will-o'-the-wisp: how shall the individual in society come to obey only himself? Nevertheless, the people are governed because they consent to be governed; and they consent to be governed because in a true sense they govern themselves.
The American consensus therefore includes a great act of faith in the capacity of the people to govern themselves. The faith was not unrealistic. It was not supposed that everybody could master the technical aspects of government, even in a day when these aspects were far less complex than they now are. The supposition was that the people could understand the general objectives of governmental policy, the broad issues put to the decision of government, especially as these issues raised moral problems. The American consensus accepted the premise of medieval society, that there is a sense, of justice inherent in the people, in virtue of which they are empowered, as the medieval phrase had it, to "judge, direct, and correct" the processes of government.
It was this political faith that compelled early American agreement to the institutions of a free speech and a free press. In the American concept of them, these institutions do not rest on the thin theory proper to eighteenth-century individualistic rationalism, that a man has a right to say what he thinks merely because he thinks it. The American agreement was to reject political censorship of opinion as unrightful, because unwise, imprudent, not to say impossible. However, the proper premise of these freedoms lay in the fact that they were social necessities. "Colonial thinking about each of these rights had a strong social rather than individualistic bias," Rossiter says. They were regarded as conditions essential to the conduct of free, representative, and responsible government. People who are called upon to obey have the right first to be heard. People who are to bear burdens and make sacrifices have the right first to pronounce on the purposes which their sacrifices serve. People who are summoned to
contribute to the common good have the right first to pass their own judgment on the question, whether the good proposed be truly a good, the people's good, the common good. Through the technique of majority opinion this popular judgment becomes binding on government.
A second principle underlay these free institutions—the principle that the state is distinct from society and limited in its offices toward society. This principle too was inherent in the Great Tradition. Before it was cancelled out by the rise of the modern omnicompetent society-state, it had found expression in the distinction between the order of politics and the order of culture, or, in the language of the time, the distinction between studium and imperium. The whole order of ideas in general was autonomous in the face of government; it was immune from political discipline, which could only fall upon actions, not ideas. Even the medieval Inquisition respected this distinction of orders; it never recognized a crime of opinion, crimen opinionis; its competence extended only to the repression of organized conspiracy against public order and the common good. It was, if you will, a Committee on un-Christian Activities; it regarded activities, not ideas, as justiciable.
The American Proposition, in reviving the distinction between society and state, which had perished under the advance of absolutism, likewise renewed the principle of the incompetence of government in the field of opinion. Government submits itself to judgment by the truth of society; it is not itself a judge of the truth in society. Freedom of the means of communication whereby ideas are circulated and criticized, and the freedom of the academy (understanding by the term the range of institutions organized for the pursuit of truth and the perpetuation of the intellectual heritage of society) are immune from legal inhibition or government control. This immunity is a civil right of the first order, essential to the American concept of a free people under a limited government.
A VIRTUOUS PEOPLE
"A free people": this term too has a special sense in the American Proposition. America has passionately pursued the ideal of freedom, expressed in a whole system of political and civil rights, to new lengths; but it has not pursued this ideal so madly as to rush over the edge of the abyss, into sheer libertarianism, into the chaos created by the nineteenth-century theory of the "outlaw conscience," conscientia exlex, the conscience that knows no law higher than its own subjective imperatives. Part of the inner architecture of the American ideal of freedom has been the profound conviction that only a virtuous people can be free. It is not an American belief that free government is inevitable, only that it is possible, and that its possibility can be realized only when the people as a whole are inwardly governed by the recognized imperatives of the universal moral law.
The American experiment reposes on Acton's postulate, that freedom is the highest phase of civil society. But it also reposes on Acton's further postulate, that the elevation of a people to this highest phase of social life supposes, as its condition, that they understand the ethical nature of political freedom. They must understand, in Acton's phrase, that freedom is "not the power of doing what we like, but the right of being able to do what we ought." The people claim this right, in all its articulated forms, in the face of government; in the name of this right, multiple limitations are put upon the power of government. But the claim can be made with the full resonance of moral authority only to the extent that it issues from an inner sense of responsibility to a higher law. In any phase civil society demands order. In its highest phase of freedom it demands that order should not be imposed from the top down, as it were, but should spontaneously flower outward from the free obedience to the restraints and imperatives that stem from inwardly possessed moral principle. In this sense democracy is more than a political experiment; it is a spiritual and moral enterprise. And its success depends upon the virtue of
the people who undertake it. Men who would be politically free must discipline themselves. Likewise institutions which would pretend to be free with a human freedom must in their workings be governed from within and made to serve the ends of virtue. Political freedom is endangered in its foundations as soon as the universal moral values, upon whose shared possession the self discipline of a free society depends, are no longer vigorous enough to restrain the passions and shatter the selfish inertia of men. The American ideal of freedom as ordered freedom, and therefore an ethical ideal, has traditionally reckoned with these truths, these truisms.
HUMAN AND HISTORICAL RIGHTS
This brings us to the threshold of religion, and therefore to the other aspect of the problem of pluralism, the plurality of religions in America. However, before crossing this threshold one more characteristic of the American Proposition, as implying a consensus, needs mention, namely, the Bill of Rights. The philosophy of the Bill of Rights was also tributary to the tradition of natural law, to the idea that man has certain original responsibilities precisely as man, antecedent to his status as citizen. These responsibilities are creative of rights which inhere in man antecedent to any act of government; therefore they are not granted by government and they cannot be surrendered to government. They are as inalienable as they are inherent. Their proximate source is in nature, and in history insofar as history bears witness to the nature of man; their ultimate source, as the Declaration of Independence states, is in God, the Creator of nature and the Master of history. The power of this doctrine, as it inspired both the Revolution and the form of the Republic, lay in the fact that it drew an effective line of demarcation around the exercise of political or social authority. When government ventures over this line, it collides with the duty and right
of resistance. Its authority becomes arbitrary and therefore nil; its act incurs the ultimate anathema, "unconstitutional."
One characteristic of the American Bill of Rights is important for the subject here, namely, the differences that separate it from the Declaration of the Rights of Man in the France of '89. In considerable part the latter was a parchment-child of the Enlightenment, a top-of-the-brain concoction of a set of men who did not understand that a political community, like man himself, has roots in history and in nature. They believed that a state could be simply a work of art, a sort of absolute beginning, an artifact of which abstract human reason could be the sole artisan. Moreover, their exaggerated individualism had shut them off from a view of the organic nature of the human community; their social atomism would permit no institutions or associations intermediate between the individual and the state.
In contrast, the men who framed the American Bill of Rights understood history and tradition, and they understood nature in the light of both. They too were individualists, but not to the point of ignoring the social nature of man. They did their thinking within the tradition of freedom that was their heritage from England. Its roots were not in the top of anyone's brain but in history. Importantly, its roots were in the medieval notion of the homo liber et legalis, the man whose freedom rests on law, whose law was the age-old custom in which the nature of man expressed itself, and whose lawful freedoms were possessed in association with his fellows. The rights for which the colonists contended against the English Crown were basically the rights of Englishmen. And these were substantially the rights written into the Bill of Rights.
Of freedom of religion there will be question later. For the rest, freedom of speech, assembly, association, and petition for the redress of grievances, security of person, home, and property— these were great historical as well as civil and natural rights. So too was the right to trial by jury, and all the procedural rights implied in the Fifth-
and later in the Fourteenth Amendment provision for "due process of law." The guarantee of these and other rights was new in that it was written, in that it envisioned these rights with an amplitude, and gave them a priority, that had not been known before in history. But the Bill of Rights was an effective instrument for the delimitation of government authority and social power, not because it was written on paper in 1789 or 1791, but because the rights it proclaims had already been engraved by history on the conscience of a people. The American Bill of Rights is not a piece of eighteenth century rationalist theory; it is far more the product of Christian history. Behind it one can see, not the philosophy of the Enlightenment but the older philosophy that had been the matrix of the common law. The "man" whose rights are guaranteed in the face of law and government is, whether he knows it or not, the Christian man, who had learned to know his own personal dignity in the school of Christian faith.
THE AMERICAN CONSENSUS TODAY
Americans have been taditionally proud of the earlier phases of their history—colonial and Revolutionary, constitutional and Federalist. This pride exists today. The question is, whether the American consensus still endures—the consensus whose essential contents have been sketched in the foregoing. A twofold answer may be given. The first answer is given by Professor Rossiter:
This is a cheerful answer. I am not at all sure that it is correct, if it be taken to imply that the tradition of natural law, as the foundation of law and politics, has the same hold upon the mind of America today that it had upon the "preachers, merchants, planters, and lawyers who were the mind of colonial America." There is indeed talk today about a certain revival of this great tradition, notably among more thoughtful men in the legal profession. But the talk itself is significant. One would not talk of reviving the tradition, if it were in fact vigorously alive. Perhaps the American people have not taken the advice of their advanced philosophers. Perhaps they are wiser than their philosophers. Perhaps they still refuse to think of politics and law as their philosophers think—in purely positivist and pragmatist terms. The fact remains that this is the way the philosophers think. Not that they have made a "rude rejection of the past." They are never rude. And they can hardly be said to have rejected what they never knew or understood, because it was never taught to them and they never learned it. The tradition of natural law is not taught or learned in the American university. It has not been rejected, much less refuted. We do not refute our adversaries, said Santayana; we quietly bid them goodbye. I think, as I shall later say, that the American university long since bade a quiet goodbye to the whole notion of an American consensus, as implying that there are truths that we hold in common, and a natural law that makes known to all of us the structure of the moral universe in such wise that all of us are bound by it in a common obedience.
There is, however, a second answer to the question, whether the
original American consensus still endures. It is certainly valid of a not inconsiderable portion of the American people, the Catholic community. The men of learning in it acknowledge certain real contributions made by positive sociological analysis of the political community. But both they and their less learned fellows still adhere, with all the conviction of intelligence, to the tradition of natural law as the basis of free and ordered political life. Historically, this tradition has found, and still finds, its intellectual home within the Catholic Church. It is indeed one of the ironies of history that the tradition should have so largely languished in the so-called Catholic nations of Europe at the same time that its enduring vigor was launching a new Republic across the broad ocean. There is also some paradox in the fact that a nation which has (rightly or wrongly) thought of its own genius in Protestant terms should have owed its origins and the stability of its political structure to a tradition whose genius is alien to current intellectualized versions of the Protestant religion, and even to certain individualistic exigencies of Protestant religiosity. These are special questions, not to be pursued here. The point here is that Catholic participation in the American consensus has been full and free, unreserved and unembarrassed, because the contents of this consensus—the ethical and political principles drawn from the tradition of natural law—approve themselves to the Catholic intelligence and conscience. Where this kind of language is talked, the Catholic joins the conversation with complete ease. It is his language. The ideas expressed are native to his own universe of discourse. Even the accent, being American, suits his tongue.
Another idiom now prevails. The possibility was inherent from the beginning. To the early American theorists and politicians the tradition of natural law was an inheritance. This was its strength; this was at the same time its weakness, especially since a subtle alteration of the tradition had already commenced. For a variety of reasons the intellectualist idea of law as reason had begun to cede to the voluntarist idea of law as will. One can note the change in Blackstone,
for instance, even though he still stood within the tradition, and indeed drew whole generations of early American lawyers into it with him. (Part of American folklore is Sandburg's portrait of Abraham Lincoln, sitting barefoot on his woodpile, reading Blackstone.) Protestant Christianity, especially in its left wing (and its left wing has always been dominant in America), inevitably evolved away from the old English and American tradition. Grotius and the philosophers of the Enlightenment had cast up their secularized versions of the tradition. Their disciples were to better their instruction, as the impact of the methods of empirical science made itself felt even in those areas of human thought in which knowledge is noncumulative and to that extent recalcitrant to the methods of science. Seeds of dissolution were already present in the ancient heritage as it reached the shores of America.
Perhaps the dissolution, long since begun, may one day be consummated. Perhaps one day the noble many-storeyed mansion of democracy will be dismantled, levelled to the dimensions of a flat majoritarianism, which is no mansion but a barn, perhaps even a tool shed in which the weapons of tyranny may be forged. Perhaps there will one day be wide dissent even from the political principles which emerge from natural law, as well as dissent from the constellation of ideas that have historically undergirded these principles—the idea that government has a moral basis; that the universal moral law is the foundation of society; that the legal order of society—that is, the state—is subject to judgment by a law that is not statistical but inherent in the nature of man; that the eternal reason of God is the ultimate origin of all law; that this nation in all its aspects—as a society, a state, an ordered and free relationship between governors and governed—is under God. The possibility that widespread dissent from these principles should develop is not foreclosed. If that evil day should come, the results would introduce one more paradox into history. The Catholic community, would still be speaking in the ethical and political idiom familiar to
them as it was familiar to their fathers, both the Fathers of the Church and the Fathers of the American Republic. The guardianship of the original American consensus, based on the Western heritage, would have passed to the Catholic community, within which the heritage was elaborated long before America was. And it would be for others, not Catholics, to ask themselves whether they still shared the consensus which first fashioned the American people into a body politic and determined the structure of its fundamental law.
What has been said may suffice to show the grounds on which Catholics participate in the American consensus. These grounds are drawn from the materials of the consensus itself. It has been a greatly providential blessing that the American Republic never put to the Catholic conscience the questions raised, for instance, by the Third Republic. There has never been a schism within the American Catholic community, as there was among French Catholics, over the right attitude to adopt toward the established polity. There has never been the necessity for nice distinctions between the regime and the legislation; nor has there ever been the need to proclaim a policy of ralliement. In America the ralliement has been original, spontaneous, universal. It has been a matter of conscience and conviction, because its motive was not expediency in the narrow sense—the need to accept what one is powerless to change. Its motive was the evident coincidence of the principles which inspired the American Republic with the principles that are structural to the Western Christian political tradition.