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John Courtney Murray, Pius XII, and Some Bracing Truths Print E-mail
By Hadley Arkes   
Tuesday, 03 June 2014

It was the interim between Commencement at Amherst and the arrival, at the end of the week, of throngs of former students coming back for Reunions.  That is usually a time of lull between the excitements.  But we have, swirling about us now, a serious agitation over the question of religion and the law.  And so I found myself drawn back to read again John Courtney Murray’s classic book from 1960, We Hold These Truths

That book was taken as a marker of growing acceptance, by the Church, of the principles of the American regime. But the irony was that the Church would become the main force in sustaining the teaching of natural law as the moral ground of the Union and the Constitution. Against the shifts to relativism, the Church would hold, with Lincoln, that “all men are created equal” was nothing less than a “truth, applicable to all men and all times.”

Murray wrote because he was already alert to the forces that would undermine that teaching.  He wrote with a sense of crisis, and yet he wrote before the advent of the pill and the sexual revolution and the trends that would make the crises of his time seem rather tame in comparison. And yet Murray’s book contains some bracing truths that may still come as news. 

For one thing, he recognized as few others did, that the vaunted First Amendment subtly incorporated the premises of relativism. The Constitution was framed for a society already quite divided in its religious commitments. When the First Amendment sought to protect the “free exercise” of religion, it was understood to cast protections over everything in the landscape that counted as a “religion.” 

In this view, as Murray said, a church may be seen simply as “a voluntary association of like-minded men; that its origins are only in the will of men to associate freely for purpose of religion and worship; that all churches, since their several origins are in equally valid religious inspirations, stand on a footing of equality in the face of the divine and evangelical law.”  With this perspective, as Murray wrote, “the churches are inevitably englobed within the state as private associations organized for particular purposes. They possess their title to existence from positive law. Their right to freedom is a civil right” – other words, it was not a right emanating from the natural law, a “right” that would be there even if there were no Constitution and positive law. 

But the claims of the Church must ever be at odds with those moral premises, for the Church would rest on truths that claim their respect as truths in all times or places.   And that is what forms the challenge of the Church in a “pluralistic society.”  Without denying itself, the Church could not recognize rival truths, all claiming the same standing. 

  
       Allegory of Prudence (tomb of Francis II, Duke of Brittany)

And yet, for the sake of civil peace, the Church would support a “civic culture” that accords dignity and respect to all religions.  The anchoring point of course is that the Church accords respect to all human beings as “children of God.”  But that doesn’t mean that it must accord equal respect to any and all groups fashioned from human inventiveness, whether they are baseball clubs, criminal bands – or churches. This has been a vexing matter for the Church, not easily finessed.  And indeed in certain quarters there has been an objection to Dignitatis Humanae (1965) as heretical in its willingness to accord dignity to virtually all religions.

In dealing with this problem, Murray drew on a speech  (Ci Riesce) delivered by Pius XII to an assembly of jurists in December 1953. The pope was addressing the problem of forming stronger political unions or federations among independent States, which figured to be quite different in their religious composition.  But Murray saw that the pope’s reflections bore as well – or even more sharply – on the problem of religion in this country. 

I hadn’t recalled this speech, and in coming to it for the first time I had to wonder why this essay, so compressed and so acute, does not find a place in every textbook on jurisprudence.  

In entering the problem, the pope suffered no doubt that the question had to begin with “the objective truth”:

Above all, it must be clearly stated that no human authority, no state, no community of states, whatever be their religious character, can give a positive command or positive authorization to teach or to do that which would be contrary to religious truth or moral good. . . .Not even God could give such a positive command or positive authorization, because it would be in contradiction to His absolute truth and sanctity.

God has the power to impede evil and error, but at times, said Pius, He chooses “non impedire” – He chooses not to impede error or evil.  And so “the duty of repressing moral and religious error” may be subordinated at times to a “better policy” of promoting “greater good.”  For Pius that greater good was civic peace. 

That may be the best we can do, but that is at best a policy of “prudence,” and it can be sustained mainly by not looking too closely at the “truths” that would underlie the policy.  And to make matters worse, there are fewer principled limits on what the intellectual classes in our own day are willing to regard as a “religion.”

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 

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written by Michael Paterson-Seymour, June 03, 2014
More significant, perhaps than the First Amendment is the prohibition of religious tests for public office in Article 6.

This presupposes that religious beliefs do not intervene in, or impact on, the relations between private individuals and the public authorities. It also presupposes that these relations are governed by common rules, independent of religious belief– which comes down to asserting the primacy of these rules over personal beliefs.
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written by Martha Rice Martini, June 03, 2014
This is a terrific piece, spot on in reprising St. Thomas' view of the matter (via Pius XII): No, there is no religious liberty in principle, but, yes, in practice, the Church should be prudent in permitting "accommodations."
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written by Schm0e, June 03, 2014
Sounds like the presumption was that "religion" meant Christianity. But WDIK?
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written by Rich in MN, June 03, 2014
Another "oldie but 'pertinentie'" was Carle Zimmerman's "Family and Civilization" published in 1947 (abridged form available in reprint) where Zimmerman describes the life cycles of civilizations. He recognized the West as sliding quickly into the final stage, "Atomism," marked by a rampant and radical individualism, cynicism, hedonism, acceptance of divorce and all forms of sexual aberration, acceptance of abortion and euthanasia, etc. He was writing, of course, in the shadow of Hiroshima and Nagasaki and was pleading that we somehow find our way out of the 'Chinese Finger Puzzle' leading possibly to our global demise.
Of course, in our current day, the anonymity of the Internet is the perfect breeding ground for trolls and sociopaths alike so, tragically, there is even less likelihood that any kind moral consensus can be reached. There are too many people who take their neighbors, and life in general, as a joke, who will set fires just because they enjoy watching the world burn.
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written by Manfred, June 03, 2014
Thank you, Dr. Arkes, for a look back at the Church prior to Vat. II. With the post-conciliar thrust toward ecumenism, the Church today has become so deformed as to be unrecognizable. It would be interesting to see what "Truths" the Church holds today.
Flannery O'Connor said it in 1961: "One of the effects of modern liberal Protestantism is to gradually change religion into poetry and therapy, to make truth vaguer and vaguer and more and more relative, to banish intellectual distinctions, to rely on feeling rather than thought, and to come to believe that God has no power, that He cannot communicate with us, He cannot reveal himself to us, indeed He has not done so and religion is our own sweet invention."
This helps to explain why so many catholics support sodomite marriage and why Canon 915 is never enforced.
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written by Paul Roese, June 03, 2014
of course one might argue as the zealots and fundies often do that the Church has gone soft. why value civil peace over the truth? the Church use to put people to death who didn't toe the party line.
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written by Lupe, June 03, 2014
So thought provoking and ,for me, timely. I have been lately recognizing the unraveling of our civic order because of the relativistic interpretation of the Constitution as a sort of Protestant problem. It seems related to the unraveling of Catholic society and culture in the West because so many Catholics have adopted a Protestant approach to Magesterial authority. As Pope Benedict said, our age is under the tyranny of relativism. The failure of Catholics to hold to true authority has made us,as a priestly people, poor leaven. And American society and government have,I think, lost the light we are here to hold up. Thank you for this article!
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written by Myshkin, June 03, 2014
@Roese
Got history? The Church has always left this kind of enforcement to secular authorities. This is NOT a quibble, since most contemporary states STILL execute people who they find "don't toe the line". Check contemporary Cuba, China, Russia, ALL the Islamic countries, etc. States have always done this and will probably always do it. It was not something unique to medieval times or, more slanderously, Roman Catholicism. In fact it is an vicious aspect of government almost universally practiced throughout history. To single out the Church for some kind of "tch-tching" is tendentious.
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written by Manfred, June 03, 2014
a footnote: American Protestants found Catholicism very threatening as opposed to their various denominations which they considered benign. One need look no further than the defeat of Al Smith in the 1920s or the challenges to JFK in 1960.
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written by Walter, June 03, 2014
I wonder if Manfred will ever write a comment not referencing sodomy.
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written by Hadley Arkes, June 03, 2014
I'd like to thank the readers who wrote in today, and I'd especially like to put an accent on the point made by Michael Paterson-Seymour, for I think he has a critical point quite right. There has been a kind of trick-of-the eye with the First Amendment. When people discuss the freedom of religion, they seem to invoke first, and solely, the First Amendment. Apparently they've been distracted from noticing this critical point made about religion in the original text of the Constitution, before the Amendments were added. And the provision in Art. VI fits more aptly the character of the Constitution, for it touches in a clear way the structure of governance: There will be no religious test as a condition for holding office. That has a more direct bearing on the nature of the regime, with a far clearer meaning, than the provision in the First Amendment on "free exercise." And I'm sure that Mr. Paterson-Seymour has it right in drawing out the implications for natural law that stand behind that provision: that the laws will be made on grounds of reason accessible to human beings as human beings, quite apart from their faith.

But we ought to recall that this provision--that there shall be no religious test for office--applied only to the federal government. At the time that George Washington wrote his famous letter to the Hebrew congregation in Newport, Jews were still not permitted to vote or hold office in Rhode Island. It wasn't until 1858 in England that the Christian oath was set aside and a Rothschild was allowed to take a seat in Parliament. And yet it was a striking thing to be established that, in America, at the end of the 18th century, it was conceivable that Jews and Christians might stand yet on the plane of a common citizenship. Or they could if Jews were admitted to citizenship in the separate States, the gateway to citizenship at the federal level. And over time the character of the American regime--the character expressed in that provision in Article VI would produce its effect.

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