Symposium
Murray’s We Hold These Truths: 1960 and Today
Hunter Baker
John Courtney Murray is often thought of as the American Catholic who did the most to bridge the gap between the American constitutional tradition and the Church of Rome on the relationship between church and state. His writing on the religion clauses of the U.S. Constitution masterfully discerns their meaning and importance and does so in a way as to promote an ideal of statesmanship that is in danger of being lost in our highly charged ideological climate.
Murray wrote in a period when much of the weight of church-state separation was set against Catholics. Many Americans feared “Romanism.” A number of Protestant scholars promoted the idea that Catholicism was a retrograde influence on the development of human rights and freedoms in the nations where it held sway.
At the same time, Catholics often viewed the separation of church and state and the religious freedom that accompanies it as a kind of heresy, on the theory that “error has no rights.” Just as American Protestants dreaded “Romanism,” so, too, did many faithful Catholics worry about the advance of “Americanism,” which seemed to trivialize and relativize religion.
Amid the abundance of ideological and theological views, Murray calmly pointed out a couple of things. First, Catholicism in the mid-twentieth century United States was thriving. Second, while the United States government neither promoted the Catholic Church nor gave it some kind of exclusive license to lead the American populace spiritually, its official indifference was a boon compared to the control most other regimes had insisted upon. And in light of the hostility and repression some nations applied to the church, religious freedom in the United States and the lack of an official anticlerical policy seemed positively protective. Maybe, he gently suggested, this separation of church and state thing wasn’t such a bad deal for Catholics after all.
Most important, though, Murray was interested in what sort of a thing these religion clauses in the First Amendment really are. Are they fundamentally situated with some kind of religious or anti-religious object in view? Were some of the devout Protestants right to see the clauses as a theological matter? Did they operate, out of wise Christian conviction, to protect the garden of the church from the wilderness of the state and politics? Or was it the other way around? Did sober minded men erect the “wall” between church and state to hem in religious influence and prevent churches from seeking the power to force membership and extract tithes?
Murray declined to endorse either of these interpretations. On his reading, the establishment clause and the free exercise clause, taken together, are not “articles of faith.” Rather, they are “articles of peace.” The distinction is critically important. Were they articles of faith, then it might well be the case that American Catholics, highly relevant for Murray’s purposes, would have to dissent. But Murray was convinced that it was wrong to “dogmatize” about the articles as many religionists and anti-religionists tended, and still tend, to do. The better course was to see them as a product not of the work of theologians or political philosophers, but instead as the fruit of the work of lawyers and statesmen.
Murray’s insight liberates the First Amendment to do its work quite well for a pluralistic society. The religion clauses, then, are not a theology to be believed but rather a practical agreement. They make possible a unity based on obtaining a level of performance without agreement about ultimate ends. In other words, the articles of peace are aimed not at aligning our souls, but rather they attempt to make it possible for us to live together in harmony.
Reading the religion clauses as Murray does relates nicely to the organic history of the United States and its colonial existence that preceded the nation. He pointed out that church-state arrangements in the U.S. are at least as much the result of pluralism and distance from the European institutional centers as from political theory or religious conviction. The evangelical historian Mark Noll affirmed the same thing decades after Murray did. What made sense in American conditions was to find a way to live together. Without this necessity, Murray notes, the work of the theorists and religionists would likely have made for good literature, but precious little actual law.
Some might be tempted to see Murray’s version of American religious liberty based on achieving social peace as something not worthy of the esteem we often attach to the constitutional rights we cherish. Murray anticipated that critique and forcefully argued against it. He wrote that “social peace, assured by equal justice in dealing with possibly conflicting groups, is the highest integrating element of the common good.” He believed that taking a high view of social peace was consonant with “the classic and Christian tradition.” Stated differently, to argue for religious liberty for the sake of social peace is, in Murray’s words, “not taking low ground.”
What Murray was really doing was putting an appropriate emphasis upon the role of the statesman in politics. In our time, we tend to think of a statesman as someone who brokers peace internationally or perhaps as a long-retired politician of whom angry memories have faded as they become noncombatants. Murray wrote about statesmanship the way we should think about it. Critically, the statesman understands when various evils should be tolerated rather than repressed for the sake of the good, that good being the public peace. The public peace is significantly constitutive of the common good.
One might recall Aquinas arguing against the prohibition of all vice on the grounds that such a strong hand might undermine the entire edifice of civil authority. The public peace deserves more respect than people of our era want to give it. This lack of appreciation for stability and calm may be a consequence of our relative prosperity and our tendency to take it for granted.
In addition to the statesmanship inherent in the American approach to religion, Murray lauded the modesty of it. Unlike the Jacobins, the American founders rejected the idea of the state as “juridically omnicompetent.” The American constitution envisions a limited national state. Sounding very much like the early Peter Drucker (or perhaps the influence ran in the opposite direction), Murray applauded the “simply political” nature of the “American thesis.” According to him, the Americans followed the Christian political tradition in setting the table for a free people under a limited government. The Catholic Church discovered to its surprise that in America it could establish a bishopric without prior approval from a governmental authority, something it had not been permitted to do elsewhere for centuries.
In his congratulation of America for being so characteristically American, Murray highlighted problems he believes we have overcome. Unfortunately, from our historical perch we can see that we now face those problems squarely and with urgency. We have been rescued, he suggested, from “the disaster of ideological parties.” Why are they a disaster? Because power becomes “a special kind of prize.” “Only in a disintegrating society,” he wrote, “does politics become a controversy over ends.” Instead, “it should be simply a controversy over means to ends already agreed on with sufficient unanimity.” If we could claim that kind of laurel for American politics in his time, we are substantially less able to lay claim to it now.
Richard Nixon could argue somewhat convincingly in 1960 that he and John F. Kennedy wanted the same things for the country, but simply differed as to the means. Today, we seem to construe both the good life and even the nature of reality differently. Our political lives are rent by disintegrating forces almost continuously. We struggle to find those things that bind us together.
During Murray’s time, there were substantial divisions. Certainly, the whole earth seemed to rest on the edge of a precipice with atomic war looming. But within the nation, there was surely more agreement about fundamental matters. One wonders whether we still possess enough social and spiritual capital to maintain the pragmatic and free system Murray rightly upheld. Do we still appropriately value the public peace he esteemed, or is it now ideology all the way down?
Hunter Baker, J.D., Ph.D. is the dean of arts and sciences at Union University and the author of three books on religion and politics.
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