John Courtney Murray and the American Civil Conversation
edited by Robert P. Hunt and Kenneth L. Grasso (Grand Rapids: Eerdmans, 1992), 312 pp.
In 1955, John Tracy Ellis critically chronicled the absence of a vital and distinctively Catholic intellectual tradition in America; less than a generation later, this sheepishness about the low reputation of Catholic scholarship had led to an uncritical embrace of the standards of secular academia, by whose lights Catholic institutions still failed to make the grade. Only in retrospect do we see how intellectually vigorous, yet thoroughly Catholic, were many of those American Churchmen who were dismissed by the avant garde of the Eisenhower years. Only in retrospect do we begin to realize what we have lost since the Vatican Council. But we also find within the Church Militant of the 1950s models for how Catholics can best situate themselves in the American civil conversation, and there are few better models for American Catholic intellectuals than the Jesuit John Courtney Murray, whose breadth of learning and acuity of mind dwarf that of most American Catholic thinkers today.
Murray’s achievements were in three related areas. First, as one of the most visible proponents in America of the neoscholastic revival—famously, he even appeared on the cover of Time Magazine—Murray introduced America to the riches of the natural law tradition. Second, his writings furthered reflection on the idea of a public philosophy, a project largely begun by the journalist Walter Lippmann. Third, his greatest substantive contribution was to the developing Catholic doctrine regarding the proper relationship between Church and State. It is commonly held that the Vatican II document Dignitatis humanae marks the Church’s definitive embrace of Murray’s views. Nearly all the essays in this collection focus on Murray’s attempt to reconcile the Catholic Magisterium to religious pluralism.
Responding to the French Revolution’s anti-clerical and secularizing impulse, the Roman Catholic Church in the nineteenth century had embraced a version of Boniface VIII’s teaching in the 1302 bull Unam Sanctam, and emphasized the need for close cooperation between “Throne and Altar.” Since “error [had] no rights,” and the Catholic Church was the true religion, temporal rulers were morally obliged to establish the Catholic Church if they could, and to limit the freedom of non-Catholic religionists. While it was acknowledged in theory that conscience should never be coerced, in practice this meant only that non-Catholics possessed a right to worship unmolested within the walls of their churches or temples. Beyond this limited concession, the weight of the laws was to broadly favor Catholics in social life, and Franco’s Spain was considered an exemplary state. The notion that the separation of Church and State was a state of affairs acceptable to God was condemned as part of the “Americanist” heresy in Leo XIII’s 1899 apostolic letter, Testem Benevolentiae.
An American if not an Americanist, Murray set out to revise the Church’s understanding of these matters in light of the experience of believers on these shores. For the great fact, and riddle, of American life is that under a political system which gives no aid or comfort to religion, belief remains vibrant. The very fact of “Unsecular America” calls into question the theories of secularization which motivated the Church’s promotion of religious establishment. Murray therefore responded to the Church’s teaching with an attempt at ressourcement. He rejected the implicit monism of “Throne and Altar,” and he argued for the older dualism evident in the “two swords” teaching of Pope Gelasius and Saint Augustine. In the distinction between the things of Caesar and the things of God, Murray could find a basis for attributing autonomy to the temporal sphere though this required a decisive lowering of the ends of political life from the pursuit of the “common good” to the mere maintenance of “public order.” Such a reduction found precedent in the work of John of Paris, but it was hardly traditional. Murray justified his departure from the more subtle Thomistic position by arguing that social differentiation in the post-medieval world had made the political community merely one of many human communities: even the temporal common good could now be achieved only through the totality of social groups rather than through the State alone. While this argument seems attractive normatively, it may also be naïve about the claims made by and for modern liberal sovereignties. Murray seems not to have considered the possibility that the “unlimited” nature of modern liberal democracy may amount to a very false modesty indeed.
Murray sought to demonstrate to more conservative theologians that the “American Proposition” of Church/State separation could be affirmed on Catholic grounds. He could do so only by arguing that the religious liberties guaranteed in the U.S. Constitution’s First Amendment represented “articles of peace” rather than “articles of faith.” That is to say, the First Amendment was a matter of praxis, not theoria; to argue that the State has no competence to judge disputed religious questions was not identical with affirming religious indifferentism or a Protestant notion of private judgment, which Murray repudiated as conscientia exlex. Murray repeatedly insisted that his argument was solely a juridical one and that he wished to imply nothing about moral rights in recognizing the State’s limitations. In this regard, he proved to be more conservative theologically than even John Paul II, who would seem in recent encyclicals to have elevated religious liberty to the status of a preferred human right.
Murray’s detractors at the time, and indeed his detractors today, accuse him of being a “liberal,” among the most potent epithets in the nineteenth-century Catholic lexicon. In these pages, Francis Canavan attempts to “save” Murray from this charge, while Richard John Neuhaus praises Murray precisely for his liberalism. Much rides on this interpretative dispute, andan essay by Mary Segers nicely illustrates the concern of Murray’s conservative critics. In Segers’ gloss, Murray argued that under conditions of religious pluralism, a State would abuse its authority if it tried to legislate about deeply contested matters which are not susceptible to resolution through public reason. As we have seen, the State has no competence to determine the truth of religious questions. Furthermore, attempting to enforce one set of religious tenets to the detriment of others jeopardizes public order, which is the State’s proper end. Murray used such premises to persuade the American Catholic hierarchy in the 1960s to accept an end to legal bans on the sale and use of contraceptives. Of course he believed that the church should continue to preach true morality to the faithful, but the State had no business coercively enacting “Catholic” morals for all. Segers therefore concludes that were Murray alive today, he might well hold a nuanced pro-choice position in disputes about abortion.
While Segers’ formulation of Murray’s argument tends to collapse a number of distinctions Murray in fact made, such as between religious and moral pluralism and between private and public morality, that Segers can plausibly do so demonstrates a possible weakness in Murray’s work. It seems inadequate to stress what Catholicism shares with liberalism without equally forcefully articulating the differences. Furthermore, given the pedagogical character of public law, it is far from clear that the crucial distinction between crime and sin can be maintained in private consciousness under a morally neutral liberal regime. Certainly the “crisis of authority” in the American Catholic Church is not unrelated to the liberal society in which it subsists. It is in wrestling with such problems that the essays in this collection are at their best.
To be fair, from Murray’s principles some potent criticisms of the American status quo can be adduced. For example, if the State’s proper end is the mere maintenance of “public order,” it would seem to have no competence in educational or cultural matters, where the formation (Bildung) of the soul and its virtues takes place. Given Murray’s dualistic delimitation of the scope of the State, the very existence of the public school system in its current form as well as the activity of the National Endowment for the Arts would appear to be secular, monistic violations of religious liberty.
Other illuminating insights emerge in these essays. David Novak observes that Murray hoped Americans with differing confessional commitments might find in the idiom of natural law a public philosophy which would allow for civil discourse about the common good. But Novak argues that natural law itself carries with it too much pre-modern metaphysical baggage to be plausible to moderns; thus, Murray’s project fails. Peter Augustine Lawler, however, suggests that Murray was aware of this difficulty and that his appropriation of the natural law is interestingly “post-modern.” Finally, George Weigel concludes the book by using Murray to appeal for the inclusion of religiously informed arguments in the public square. Weigel and Murray thus differ from such liberal theorists of “public reason” as John Rawls who have claimed that arguments should be “allowed” into public debate only if they appeal to entirely non-controversial precepts. Public reason theories display unabashedly the intolerant face of liberalism, for they exclude far more than they include. Weigel understands Murray to say that the “culture-forming” task of civil conversation is a broader and more differentiated, and thus a more truly “public” activity than is the field of strictly political governance. This is a distinction seemingly too subtle for modern liberal theorists to comprehend. A question largely latent in Murray’s work, the pressing question of our time,is how to protect this expansive public square from the restricting presumptuousness of the liberal state.
Mark C. Henrie was, at the time of writing, studying political theory at Harvard University.
