book cover imageAmerican Law from a Catholic Perspective: Through a Clearer Lens
Edited by Ronard J. Rychlak.
Rowman & Littlefield Publishers, 2015.
Hardcover, 326 pages, $85.

The contributors to American Law from a Catholic Perspective are well acquainted with the nuance and sophistication of Catholic social teaching. In this fine collection of essays, they evaluate the American legal system against the values that animate the Church’s vision of a just and humane society. The result, to quote Notre Dame law professor Gerry Bradley’s forward, is a primer that is “relentlessly critical,” but not “full of criticism.” The authors closely scrutinize American laws on moral grounds, and find much to commend.

The authors take head-on the sometimes thorny history of the treatment of American Catholics under the law. Catholic schoolchildren in nineteenth-century public schools were required to read from Protestant Bibles. The schoolchildren sought an accommodation that would permit them to read from an English Bible authorized by the Catholic Church. The public schools initially prevailed in court, prompting Catholic authorities to create a parochial school system. The response to that effort was the Blaine Amendment, adopted in three-quarters of state constitutions, which prohibited the use of state funds for religious instruction. Oregon went as far as requiring school children to attend public schools, a measure that had the effect of abolishing Catholic parochial schools. A Catholic religious congregation whose school ran afoul of the law prevailed in a unanimous Supreme Court ruling that explained, in terms that would have made Jean-Jacques Rousseau blush, that the “child is not the mere creature of the state,” and that parents have the “fundamental” right to educate their own.

It is not possible to review the back-and-forth between state law and the rights of Catholics in this book or elsewhere without concluding that there could have been a better way. The result of decades of church and state litigation was a judicial denouement that eliminated religious instruction from public schools and public subsidies to religious schools. Both sides, in short, received what neither wanted as the role of religion in the public square was diminished under the court-imposed settlement.

Much of the hand-wringing over the influence of the parochial schools was ill-informed and prompted by a suspicion of Catholic clergy and religious, as several contributors to American Law from a Catholic Perspective note. Catholic education was not inimical to American liberties. Private religious instruction, to the contrary, is what President Washington had in mind when he insisted in his farewell address that religion was essential to public morality and therefore “to every species of free government.”

But Catholics too could have played their hand differently. Neglected in the development of a system of religiously affiliated schools was not any republican tenet, but a Catholic one. The Church’s social doctrine, as several contributors to this volume point out, revolves around subsidiarity, the principle that social activities must be performed at the appropriate level of society. The education of children is a task that belongs to parents, a point that the Supreme Court made when it struck the state law prohibiting private schools. American Catholic authorities may have been truer to the principle of subsidiarity had they concentrated their efforts on forming the religious consciences of parents, the social organization responsible for the education of children, rather than administering schools themselves.

The contributors find America’s founding principles to be largely consistent with the fundamentals of Catholic social thought: the dignity of the human person, the freedom to pursue religious truth, and the redeeming value of human work. Echoes of the Church’s teaching on the sanctity of human life, notes Amherst College professor Hadley Arkes, can be heard in early Supreme Court Justice James Wilson’s observation that human life was inviolate under the common law from the moment “when the infant is first able to stir in the womb.” The centrality of the human person in the Catholic moral vision rests on the unique relationship between God and man, a relationship that American jurists have also recognized. Dissenting from the Dred Scott decision, widely regarded as one of the worst abuses of judicial power, Justice John McLean wrote that the majority erred in refusing to acknowledge that an African-American person “bears the impress of his Maker, and is amenable to the laws of God and man, and … is destined to an endless existence.”

Religious liberty is a qualified right under both constitutional law and Church teaching. In a 1990 opinion that refused to sanction the use of peyote, an illegal drug, for religious purposes, Justice Antonin Scalia explained that First Amendment’s religion clause does not permit a citizen to take the law into his own hands. Congress abrogated Scalia’s ruling with the enactment of the Religious Freedom Restoration Act (RFRA), but even under that statute religious freedom does not prevail in every case. A law that serves a compelling public purpose, and represents the least burdensome manner of doing so, passes RFRA.

Similarly, the Church understands religious liberty to immunize individuals from acting contrary to their own beliefs, but carves an exception where it is necessary to maintain public peace. The Church also teaches that the state may limit religious freedom in order to protect public morality. The latter view is reconcilable with the American understanding of religious liberty. The Supreme Court relied on a heavy dose of public morality in 1878, when it rejected a religious defense to an anti-bigamy statute. The Court described plural marriage as “odious,” “an office against society,” and likely to produce “evil consequences.” In the current controversy over religious exceptions for businesses that seek to avoid participating in same-sex weddings, it is largely taken for granted that public morality is a sufficient basis for curtailing religious expression. The real debate is over what constitutes public morality—tolerance of same-sex marriage or tolerance of those who oppose it—and who will make this determination—the legislature or the courts.

Many readers of American Law from a Catholic Perspective may be tempted to skim, or skip all together, chapters that deal with technical subjects. One chapter not to be missed is the entry on the connection between Anglo-American bankruptcy law and Catholic social doctrine. Bankruptcy rules strike a balance between the interests of creditors and debtors. Creditors receive a lien on the current assets of the bankrupt debtor, who, in return, is discharged from indebtedness. The system was designed to avoid a specific problem. Bankrupt debtors have little reason to continuing working when creditors have a lien on their future earnings. Permitting creditors to collect debts in full would leave debtors, in the words of Senator Henry Clay, “prostrated and paralyzed, and rendered utterly incapable of performing his duties to his family and his country.”

Catholic doctrine on the dignity of human work reinforces the compromise at the heart of bankruptcy law, writes University of Mississippi law professor John M. Czarnetzky. Although recognizing the significance of work’s material component, the Church gives priority to its subjective component—that is, the qualitative changes that work produces in the human person. Through work, the worker develops human capital, virtues such knowledge, diligence, organization, and responsiveness. The bankruptcy discharge likewise recognizes that a person’s human capital is more worthy of protection than his physical capital. The debtor’s assets are liquidated, but the absence of a permanent charge of the worker’s future earnings frees him to continue developing his human capital.

American jurisprudence underwent a significant transformation with the ascent of what is called legal positivism. Justice Oliver Wendell Holmes famously articulated the positivist view of the law when he proclaimed that the law is best understood from the perspective of an immoral person—the “bad man”—who cares only for whether a legal judgment will keep him from what he desires. Contra Holmes, the Princeton philosopher Robert P. George supplies a superb essay that argues instead that law reflects society’s moral judgments.

George develops the jurisprudence of legal philosopher H. L. A. Hart, who argued that judicial skepticism about the moral basis of positive law failed to describe reality. Hart’s key insight, George writes, was in approaching the law from the vantage of an individual who is subject to it, the so-called “internal point of view.” From this perspective, George argues, it is apparent that legal rules exist for a moral purpose. They inform citizens what they can and cannot do based on what society finds to be desirable. Because the justifying aims of law are moral, legal pronouncements may be evaluated as to whether or not they are, in fact, good or just. Anyone interested in that endeavor will be well served by consulting American Law from a Catholic Perspective.  

Michael Toth is a Fellow at the Stanford Constitutional Law Center.