Dan Whitehead
“[I]t would be very erroneous to draw the conclusion that in America is to be sought the type of the most desirable status of the Church, or that it would be universally lawful or expedient for State and Church to be, as in America, dissevered and divorced.… [the Church] would bring forth more abundant fruits if, in addition to liberty, she enjoyed the favor of the laws and the patronage of the public authority.” —Longinqua, Encyclical of Pope Leo XIII on Catholicism in the United States.
In We Hold These Truths, Fr. John Courtney Murray claims that the First Amendment—which disallows the federal government from recognizing the truth of any particular propositions about the nature of God or human obligations toward him—was the product of good natural law thinking and consistent with Catholic political teachings. Fr. Murray, unfortunately, even goes so far as to call St. Thomas the first Whig.
Much is wrong with this. Fr. Murray misses the mark because he fails to apply his observations regarding spiritual and temporal authority and its history in “the West” to the American experiment. Critically, he distinguishes those who issue laws and public policy from those who guard the public consensus. The public consensus, according to Fr. Murray, is the moral criterion, the standard, for evaluating a particular political community’s laws and public policies. It’s an imperfect analogy, but the laws and executive actions of “temporal” or “political” authorities are judged by “spiritual” or “ecclesiastical” authorities, the arbiters of the public consensus.
In antiquity, the distinction didn’t exist—public worship of the gods fell under the jurisdiction of political rulers. The emperors of Japan, Rome, China, and Tenochtitlan were not only the ranking political authorities in their respective communities, but also the high priests. This was the case everywhere in the pagan world—supreme political authority meant concomitant spiritual jurisdiction. This made sense because politics is the art of ordering human life toward its final end. Before Catholicism, the most advanced pagans considered the good of the polity to be man’s highest attainable common good.
The situation radically changed with the advent of Catholicism. Something new under the sun occurred when the popes and bishops articulated what became known as Gelasian Dyarchy (named after Pope St. Gelasius I)—the teaching that the Church’s spiritual authority is superior in dignity and rank to the political authority of temporal leaders, since the former directly relates to eternal beatitude and the latter to earthly happiness, and that political authority, although distinct, realizes its perfection only in subordination to spiritual authority. In practice, the Church endorsed natural law political philosophy, but with the newfound understandings that grace elevated nature, that nature was for the sake of grace, and that man’s final end was eternal beatitude.
This teaching was alive in the minds and politics of Catholics from the late Roman Empire through the era of Christendom. Although conflicts about civil and ecclesiastical jurisdiction were constant and some bishops wielded political authority (which was not the norm), the window of discourse was Gelasian. The shift back to widespread, and necessary, fused temporal-spiritual authority occurred during the Reformation. The Reformers, hostile to Rome as they were, denied the spiritual authority of the Catholic episcopate. But spiritual authority—the power to set out the moral criteria and standards of judgment for a political community—doesn’t go away. It just goes somewhere else. This shift led to the Great Unraveling of the Catholic political tradition, still ongoing.
At its core, Protestantism maintained that every Christian had the competence individually to discern supernatural truth and therefore morality through scriptural immersion. Essentially, then, Protestant political theory was not only anti-Catholic, but anti-natural law, since it implicitly denied the competence of political rulers to legislate ordinances aimed at attaining common goods. These core teachings dissolved the hold that Catholic political theory had at different speeds and in various manners throughout Christendom.
Initially, the Protestant idea led to divine-right-of-kings theories. Without the pope and bishops, spiritual authority reverted to where it was before popes and bishops claimed it—the regnant political authorities. Since the Reformers were operating within, albeit at the same time deconstructing, the natural law tradition the notion that political rulers could licitly legislate morality and orient man toward common goods still prevailed. Convention and existing political realities required it.
But this particular temporalization of Gelasian Dyarchy was deeply dissatisfying to the Protestant mind. Protestantism’s inherently atomizing and voluntaristic energies could not tolerate this arrangement for long. If a pope or bishop can’t adjudicate matters of spiritual truth, why should a political leader? Why can’t everyone be a pope?
From this critique followed newfound political theories based primarily on consent (as in Locke) and advocacy for, more or less, democratic or parliamentary political processes as the only legitimate forms of government. This made sense from the Protestant perspective, since it theoretically shifted spiritual authority from political leaders to “the people.” In a strange twist, the people became the new episcopate whose role was to judge political authorities, consented to and anointed by the people’s “spiritual” authority.
But the Protestant insistence on popehood for all had problems. First, it wasn’t remotely possible to effectuate in public policy the edicts of every person in a given social arrangement. Protestant confessional states and communities depended on an arbitrary critical mass of consensus to sustain themselves. However, this critical mass was constantly breaking down since the driving force behind Protestantism—a belief in the divine right of every individual to define right and wrong in matters of religion and morality—necessitated it.
Second, the further Protestant polities divorced themselves from Catholic political theory, the more unstable and incoherent they became. Catholic Christendom understood politics as the art of attaining common goods, that is, naturally and supranaturally known non-material, indivisible, spiritual goods like truth, justice, and social harmony, communicable to all. Protestant polities, as mentioned, could not, in a non-arbitrary way consistent with their inner dynamism, maintain a consensus regarding common goods. Breakdowns in consensus were the norm.
Third, Protestant polities, despite endorsing freedom of conscience in rough outline, could not tolerate Catholicism. And for obvious reasons. If the people, for instance, voted for Roman Catholic bishops or administrative personnel to have an ultimate juridical say in public affairs, they would effectively destroy the system. That is why England and some American colonies disenfranchised and persecuted Catholics. So, strangely, Protestant polities, though always breaking down in consensus about the nature of Christ and just government, had to maintain at least one prejudice: anti-Catholicism.
Liberalism, the logical conclusion to the Reformation, sought to remedy these problems. A few centuries after the Reformation, Protestants were incapable of maintaining a critical mass sufficient to establish any particular creed as politically determinative. Instead, Enlightenment liberals, consisting primarily of Deists and Protestants of various stripes, established a new public consensus that political man could reason about and discuss anything—except religion, which was now seen as especially dangerous to social order. Fr. Murray, George Weigel, et co. mistake the Framers’ commitment to reason and public discussion for a commitment to natural law. Rather, the Framers’ belief—that man could know some things about reality and instantiate those beliefs into law—was merely another vestigial Catholic belief, left over after Protestantism’s inner dynamism of dissent and fragmentation rendered its more supernatural-sounding beliefs politically untenable. But the Framers just happened to live in a passing phase of the liberal Overton window, when a critical mass of Americans happened to agree on various apparently natural law moral conclusions. Unfortunately, classical liberalism, Protestantism purified of its connection to Roman Catholic dogmatism, was not bereft of Protestantism’s atomizing and voluntaristic energies.
Case in point, using their “reason,” the liberals determined that the object of politics was not to attain common goods, but to establish a state of affairs where everyone could, more or less, choose their own private goods and truths. Liberalism required democracy at this point since it was seen as the only legitimate form of government, thanks to Protestantism. But the liberals understood that democracy required “checks” to ensure that its fundamentally antipolitical commitments survived. These checks took the form of procedural norms and policies that disallowed truth claims about the nature of God, policed by liberal agents. Although pretending at neutrality, liberal theory effectively invalidated the natural law tradition and any religious position that made strong truth claims about political order. (This is why contemporary liberals claim that illiberal democracies, like Poland and Hungary, are not really democratic despite their people voting for non-liberal measures.) The classic Americanist riposte that the Founders endorsed a belief in God is of no moment—the fact that they couldn’t legislate about his nature or man’s responsibilities to him is.
Essentially, the only valid public policies and legal enactments became those that unraveled the vestigial remnants (retained in Protestantism) of the old medieval order and that promoted liberalism’s antipolitical vision. Liberal theory replaced God, naturally and supranaturally known, and his mediating institutions (the episcopate and associated temporal rulers) with the so-called Rule of Law and decidedly liberal administrators, who became the bishops of the new regime, the arbiters of the new public consensus. This is the tradition the Framers of the Constitution were operating within, unconscious of it though they were, since they lacked proper theological and philosophical training (it’s doubtful any of them were acquainted with St. Thomas).
The Framers, almost to the man identifying as Protestant or Deist, worked out liberal theory for the nascent United States in its particular circumstances. The Free Exercise and Establishment Clauses’ purpose was, not to put a temporary moratorium on the public recognition of a religious tradition, but to preclude that possibility for the reasons outlined above. In doing so, these “Articles of Peace” publicly established, instead, theological agnosticism and secularism as the deepest guiding religious convictions of the federal government, placing illiberal religious beliefs at a juridical disadvantage. Because of their Protestant cultural commitments and existent political conditions, the Framers retained democratic processes and certain moral convictions. But, in establishing a new secular order, a liberal temporalization of Gelasian Dyarchy, the Framers accelerated the privatization and illegitimation of competing accounts of political order and nonconforming religious beliefs.
Ironically, the Framers (like liberals of every age) were highly distrustful of the people exercising political authority in an ultimate sense for they could, benighted as they were, elect tyrants (associated with monarchy, an archaism of the medieval past). But if the people could not be trusted to exercise their “spiritual” authority properly, that is, in a liberal manner, who could? With the new executive and legislative branches seriously impeded through “checks and balances,” the judiciary assumed the miter. (The absence of serious checks on the Supreme Court seems to confirm the Framers’ probably unconscious bias that judges would not pose a serious threat to the new liberal order.) The purpose of American judges, these high priests of the “Rule of Law” and arbiters of the new public consensus, was to implement and validate the liberal view of reality and set out its moral criteria, gradually and pragmatically through adjudications—and to invalidate perspectives antithetical to that vision. In doing so, the judiciary tacitly created what Ronald Dworkin has called a “secular papacy” and corresponding magisterium, replete with dogma and doctrines otherwise known as caselaw, that defined the parameters of rational discourse concerning public policy and legality.
This is why judges have something of an apolitical, mature aura about them, since they only vindicate the will of “the Rule of Law,” which is seen as something like a default rationality—whereas the executive and legislature are perceived as self-interested and partial. Analogous to the way that medieval bishops set forth the moral criteria and parameters of public policy for feudal lords, e.g., proscribing polygamy and adultery, defining the nature of the Trinity, and defending the rights of the peasantry, American judges determine which beliefs cannot serve as a rational basis for public policy for the executive and legislature and which acts serve no legitimate public ends, e.g., the legality of abortion, the “personhood” of corporations, the parameters of constructive speech, and the nature of marital relations. But because liberalism cannot declare what is or is not true (remember, everyone must believe that they’ve identified their own truths and goods), judges hold that nonliberal political beliefs and actions violate the “neutral” Rule of Law, an ersatz replacement for a robust philosophical account of justice’s requirements.
Understanding that judges have taken on the role of bishops explains many phenomena. It explains why the liberal laity venerate certain Justices like saints, go into a religious fervor and ecstasy whenever the Supreme Court divines a new dogma proscribing yet another remnant of nonliberal culture, enter intense paroxysms of rage and hatred whenever it appears that a heretic might threaten liberal progress, and hold public vigils and lamentations when a liberal Justice dies. It even explains why federal judges during COVID feel quite comfortable telling Catholics and other religious adherents that they can find spiritual solace in ways other than communal gatherings, while approving exceptions to quarantine measures for various secular purposes in the midst of mass protests in every major American city.
Of course, for the first century and a half or so, this secularizing process was gradual and subtle. And this is to be expected. Entrenched cultural habits die hard. It was three hundred years before a Roman emperor converted to Catholicism, and even after that, there were bursts of persecution from pagan authorities until about eighty years later when it was publicly recognized as the true religion. Pagan beliefs and practices, like widespread state-sanctioned sex slavery, gladiatorial games, infant exposure, and concubinage, were hard to put down. But for this to be politically possible, there had to be a critical mass of Catholics and a sufficiently indifferent, or ineffectually hostile, pagan response.
The same calculus obtained in the American context. Liberal theory did not fully realize itself at the outset of the American experiment because of concrete circumstances—too many Americans were committed to Protestant and vestigial Catholic moral conclusions. But, despite this, the deepest commitments of the American juridico-political order were liberal, and Protestantism, essentially fragmentary, could not sustain its moral proscriptions, which came to increasingly appear arbitrary and subrational. Judges issued rulings, gradually implementing liberal theory, probably for the most part unconsciously, on a case-by-case basis, limited by what was proximately possible at the time. But all the same, liberal antipolitical theory rotted out, here and there, whatever was inconsistent with its core deconstructive conviction—namely, that existential and political salvation lies in rejecting nonliberal forms of life. And it matters not that the Framers would object to current political and legal conditions. In the same way that Martin Luther could not see how violent peasant revolts were the obvious consequence of his political theology, the Framers would likely not see how they engineered a system that accelerated the delegitimation of their cherished Protestant, yet private, moral convictions.
Fr. Murray did not realize that the Framers’ commitment to “rational” (strictly circumscribed and purified of religious overtones) discourse was merely a transient phase in the ongoing deconstruction of the old medieval order. He also missed, or did not definitely articulate, that the judiciary took on the role of “spiritual authority” of the American civil religion, liberalism. And, although protesting the secularizing consequences, he did not appreciate that the First Amendment’s theological position necessitated them. Perhaps it was because, in part, the United States tolerated the existence of Catholics within its borders. If this was the case, I believe Fr. Murray mistook tolerance for approval. The liberal religion tolerates Catholicism, and all nonliberal political theologies, to the extent that it’s politically necessary. Historically, it was unnecessary to proscribe the Catholic religion in America (as happened in England) as it posed no real political threat, and liberalism had not yet morphed, due to the necessarily ever-shifting liberal window of discourse, into its more virulent progressive form. But now, even the mere thought that someone somewhere might entertain an illiberal belief sears the liberal conscience, and Catholicism, because of its extensive educational, medical, and cultural network, stands in its way. So it’s become increasingly desirable and possible to persecute practicing Catholics. As the liturgical dance of liberalism goes on, from the suing of nuns, the closures of Catholic adoption programs and schools, the economic punishment of elderly Christians, to ever more hostile congressional hearings, the Catholic Church is losing political legitimacy under the “Rule of Law.”
And until Catholics cease pinching incense at the altar of the Constitution, as interpreted in conventionally textualist, originalist, and progressive terms, it’s only a matter of time before the dedicated are legally defined as hostes humani generis, enemies of the human race.
Dan Whitehead is an attorney in the DC-metro area interested in political theology. He is also an assistant editor for The Josias and Ius et Iustitium.
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