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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Bruce P. Frohnen

We Hold These Truths is about “the American Proposition,” that is, the American public philosophy that once shaped our civil social order. More importantly, it is about truth, about the reality that shapes our lives as persons and as Americans. Catholics in particular refer to the principles derived from this reality as natural law. The question we face, sixty years after publication of Murray’s book, is whether there remains any place for natural law in American public life, as well as whether American public life can survive without it.

Murray’s natural law argument has three central elements: first, that we can know what is good and what is evil; second, that we can reason together about how we should pursue the one and shun the other in both public and private life; and, finally, that the American constitutional order has begun to crumble because we no longer possess these understandings. What makes this argument necessary today is the very fact that it seems foreign to contemporary discourse. Our intellectual classes in particular no longer consider such views worth discussing, let alone considering as they consider public policy and cultural reformation. As for Americans more generally, their attitudes and habits show ever less recognition of essential truths regarding human nature and the social order.

The typical American today inhabits a false reality that screens from him the true nature of himself and the world around him. In today’s false reality, each of us lives our “own truth.” We look at the world through the lens of our own dreams of perfection and resentment, then emote. All this to make ourselves comfortable as autonomous individuals in a sea of all-but-random choices and impersonal power relations. In such a world, talk of natural law seems odd, if not downright mad. Few know John Rawls’s name but our political class has been steeped for generations in his story of society as the product of an original contract forged by individuals with no ties, no history, no goals higher than security, well-being, and a self-esteem rooted in common dependence on a state that relentlessly calibrates “fair” life chances for all.

Rawls’s false reality is a caricature of the already-thin philosophy of John Locke. That philosophy assumes that we choose civil society. It assumes that the civil social order is not the product of a natural drive for community and of the interaction of reasonable persons with their natural associations, their circumstances, and the traditions that shape the world in which they are reared. In We Hold These Truths, Murray denies these falsehoods and offers in their place a genuine vision of reality. He describes the person as he is, a social being possessed of the capacity to know much of the truth regarding the order of existence, including, most importantly, his duty to live by that truth.

It is common for those who reject natural law to claim that it demands an inhuman perfection at odds with our animal nature and spiritual desire for individual flourishing. But this is mere excuse for self-indulgence. Murray points out that natural law promises no paradise on Earth. Nor does it require saintly virtue. Rather, it is a guide to basic decency rooted in recognition that we live in an objectively real world made according to a pattern we must seek to understand and follow. Natural law, Murray tells us, “promises only to prescribe for the purposes of law and social custom, that minimum of morality which must be observed by the members of a society, if the social environment is to be human and habitable.” As a priest, Murray obviously knew Christians in particular have higher callings and aspirations. But all men can and should recognize and work toward decency, lest they bring Hell to earth.

Even today, a very different Murray, the broadly libertarian Charles, points out that those with the opportunity to study both functioning and non-functioning communities act on the reality of our social nature and knowledge of the consequences of ignoring it. They preach libertine individualism but practice “bourgeois values”—getting and staying married, prioritizing education and work within stable cultural environments—because such norms are in accordance with reality; they “work” in the practical sense that they make a stable, decent life much more likely. In his day John Courtney Murray observed that those who propounded the moral relativism at the heart of contemporary society also were wise enough to eschew practicing what they preached. They felt the need to live by standards that fostered social trust through the keeping of contracts, promises, and social conventions demanding public civility.

We who cashed our government checks while leaving our parents alone in coronavirus-infected nursing homes have fallen far from the common decency of our forebears. Over decades of narcissistic cynicism we have used up the bank and capital of the ages, generated over generations by a people committed to faith, family, and freedom within their self-governing communities. There remains much decency among the American people, but decency among many is not sufficient. As Murray points out, the American public philosophy not only requires but is constituted by consensus regarding substantive truths. The Declaration of Independence, so often referenced as in its essence the font of individual rights, offers no great, new philosophical ideas. Rather, it expresses the American consensus that ours is a people self-consciously under God and natural law. This was the essential starting point for Americans to build on their traditions, applying reason to experience in formulating a constitutional order.

The Declaration was an acknowledgment that Americans at the Revolution already had laid the groundwork for a Constitution rooted in man’s nature as a social and moral being. They formed a government limited by their pre-existing duties to God and community. It built political rights on these natural duties by denying to the government powers that would conflict with them. The free, limited government they forged made possible the development of that virtue inculcated only in more intimate, natural associations yet utterly necessary for a decent civil order among a free people.

The drafters of our Constitution and those who shaped our public philosophy applied a natural law understanding to and within the Anglo-American common law tradition, developed in American circumstances to form a specifically American constitutional order. Unfortunately, having lost our natural law understanding of the person qua person, we also have lost our ability to pursue and nurture virtue in public and private life. And, without this virtue, without this determination to choose the good and avoid the evil, there can be no common understanding, no social trust, and, in the end, no free government or habitable society.

Some Catholics, especially in his own time, criticized Murray for excessive “Americanism.” But history is an essential element of natural law. Eternal principles must be instantiated by specific peoples in accordance with the demands and customs of the time. The customs of Murray’s place and time were American, that is, democratic. This made consent, a term that, broadly defined, underlies political legitimacy in general, especially important within our public philosophy. What do we do, then, when political forms and institutions show hostility toward religion and the natural law tradition it upholds? Crucial to Murray, this question seems inescapable and all but insoluble in our time.

In this context it is fair to criticize Murray for his overly broad understanding of constitutional development. He unfortunately subscribed to the then all-but-universal “living constitution” theory that empowered judges to “validate in law” interpretations of constitutional provisions propelling “dynamic development of judicially enforced constitutions.” But our Constitution is not a custom to be changed over time informally, let alone one to be rewritten by judicial fiat. It is not even a set of common law principles or natural law precepts open to new applications as times change. It is a statute. If we are to maintain the rule of law, we must interpret the Constitution in its own terms as understood by the audience toward which it was aimed. This means defining its terms in light of natural law understandings (e.g. of our social nature) and goals without resorting to any kind of reimagining or rewriting.

It is important to note that Murray makes his interpretive statements in arguing for positions in keeping with natural law understanding. Specifically, he urges government accommodation of religion, especially providing funding for religious schools. As Murray observes, government is not the shaper of society and so has no right to take command over all of life. That the Church shall be free is a principle, enshrined for example in Magna Carta, that underlies any decent, limited government. Thus, to favor non-religion over religion, to undermine the people’s wish and duty to rear their children in their religious understandings, is contrary to both American tradition and to natural law.

Our descent into democratic totalitarianism, slow at first, has picked up steam as Americans become ever less self-governing members of multiple associations and ever more individual subjects of a centralized state; politics have become central to everything we do. Thus, the Declaration of Independence, which Murray pointed to principally for its helpful recognition of natural and American customary law, has become the focus of frenzied ideological manipulations pitting hypertrophic individual rights against various forms of resentment and charges of bad faith rooted in group identity. Both the focus on politics and the false claims made deny our social nature—the first in favor of a “private” life devoid of human engagement, the second in favor of a commanding state. What is needed, then, is a recurrence to Murray’s out-of-fashion argument: that political statements are important principally for the support or damage they do to our permanent nature and to the customs we have built that allow that nature to flourish.  

Bruce P. Frohnen is a Senior Fellow at the Russell Kirk Center for Cultural Renewal and Professor of Law at Ohio Northern University College of Law.

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Richard M. Reinsch II

America is a country split apart. There is little room for authentic conversation, civility, and compromise between opponents, Left and Right. Even more disturbing is the rise of ruination of dissenters as a primary tactic in political disagreement. We struggle to know who we are anymore as Americans. To articulate national unity of any kind, other than bromides to egalitarianism and rights-talk, is a rather lonely political appeal. Why then would a sixtieth-anniversary appraisal of John Courtney Murray’s We Hold These Truths (1960), a book that attempts to theorize what Murray calls the “American Proposition,” be timely or even worth reflection? At best, opponents on the Progressive Left and Post-American Right will say: this is just Catholic conservative types whistling past the graveyard of their own failures to assume intellectual leadership in conservatism, to say nothing of their larger failures to formulate America’s public philosophy, post collapse of Mainline Protestantism. “Go ahead, though, show us your museum pieces, Richard. What’s this one called? Old-school Jesuit from the Great American Auto Age.” But if we read Murray with fresh postmodern conservative eyes, in the full light of our country’s failures, we will find new wisdom to work with.

Murray’s significant work in political philosophy is frequently and unjustly dismissed as an antiquated attempt to undergird American constitutionalism with natural law, and that this effort is for an America that no longer exists. Others note that his “American Proposition” traffics in Cold War American pieties of patriotism, American exceptionalism, Lincoln’s greatness, and general optimism about an America that could overcome its problems if it understood itself. Whatever we were, we really aren’t that now.

Certain Catholics specifically note that the book attempted to update the Church in America to American political realities, with the Church needing to be receptive to this learning. In that sense, the book prefigured Vatican II’s imprint in America, which in practice meant a Church with more give and pliancy in its teachings, practices, and expectations. For serious contemporary Catholics, this is no compliment.

To begin with, Murray would see your postmodern cynicism about America, and raise you his pervasive mid-century skepticism that America would be held together if the American Proposition could no longer be proved, a prospect he found likely. He is not bullish about America, and writes as a Catholic and patriot for a country that he believes is losing touch with its bedrock truths. Murray does not write to make the Church safe for America, nor is he the kind of “Spirit of Vatican II” type who wants Sister to wear her JCPenney pantsuit instead of her habit. He means to engage America as a Catholic thinker of the first order, deepening American political truths with a comprehensive sense of the ideas, laws, and institutions that made America possible. Part of his case builds on a rich foundation of natural law and then Murray applies it to unique situations created by American pluralism. There is also a manifest desire to help Americans think coherently about law and coercion. In this sense, Murray challenges the vestigial Puritan spirit in our country that constantly desires a law or a rule to proscribe disliked conduct. Murray points to what the law can and cannot realistically regulate.

Murray reports that people ask how American democracy can tolerate Catholicism. The question, he says, is “invalid and impertinent” and an inversion of values. The question for Catholics, Murray asks, is “whether American democracy is compatible with Catholicism.” God, then Country. We are in the hands of a serious Catholic, an American, and an incredibly learned Jesuit, who is bringing all of his theological, philosophical, and political tools to bear on the problems of our republic.

American Proposition

Murray begins his argument about the American Proposition by rooting it in the Declaration of Independence as interpreted by the statesmanship of Abraham Lincoln: “It is classic American doctrine, immortally asserted by Abraham Lincoln, that the new nation that our Fathers brought forth on this continent was dedicated to a “proposition.” That proposition is both theorem and practice rooted in the truths we hold as Americans that “all men are created equal.” As such, it is planted in a realist epistemology that there are truths about man’s God-breathed dignity, we know them, and we make them the basis of our government. The Proposition has multiple parts that come under stress in different times, and we must constantly prove it to be true. Lincoln vindicated “all men are created equal,” doing so most poignantly in the Gettysburg Address. This part wasn’t merely under stress, but actively denied with bullets.

Murray’s full account of the Proposition notes that we are crucially a nation under God. There is no hint in the American tradition of political atheism, no connection between our constitutionalism and the autonomy of man and reason found in the French Revolution. By stating in our Declaration of Independence that there is truth beyond politics that imparts meaning to our politics, that is, the sovereignty of God, America recognizes the freedom of the soul to pursue truth unhindered by government. Government stands, ultimately, limited by the providence of God. Lincoln’s phrase, “This nation under God,” is American doctrine at its best, Murray says.

The Proposition receives further content from “Constitutionalism, the rule of law, the notion of sovereignty as purely political and therefore limited by law, the concept of government as an empire of laws and not of men.” Murray notes that these are ancient doctrines America has received that were “planted in the British tradition at its origin in medieval times.” This formal content undergirds public deliberation among the various communities and groups within America and it must be guided by that deliberative purpose to preserve civil peace and freedom or it slides into decadence.

What should be reached through this deliberative process is a consensus that shapes how the country will handle the political and economic choices it faces. The consensus builds on the Proposition and is not a discussion about ends—free economy, republican government, individual liberty, associational life—but about the means that will best realize these ends. Murray says that when the ends are in dispute then you can be sure that the political order is tottering. This consensus is not ideological or formulaic; it does not produce coin-in-slot, turn-the-handle results. It is also not fixed but capable of growth as new circumstances and factors emerge and demand new responses. Decay of the consensus can occur if deliberation breaks down under the influence of ideological parties or barbarism, both of which make political dialogue impossible.

The tradition of America, Murray underlines, is a pluralistic one. The Proposition defends the integrity of pluralism and the civility that makes it possible. Murray defines four primary groups: Protestant, Catholic, Jew, and secularist. We would add to this list, and note how the differences, particularly for devoted members of Catholic, Protestant, and Orthodox Jew have shrunk considerably. A devout Southern Baptist easily finds more in common with a devout Catholic than a mainline Protestant. The federal government takes no particular side among the groups but preserves space for each one to live according to the truth as they see it. But this is not merely neutrality. The Proposition’s truth about government under God remains true. This excellent truth is born of the ancient teaching of the “freedom of the Church,” that now finds its modern embodiment, Murray argues, in the First Amendment and its speech, religious, and associational protections. The original school of freedom for Western man, Murray contends, was in the church’s freedom to govern itself and its members separate from the state. Here was the spark that lit the flames of civil society.

Two Swords

Freedom of the church was poignantly declared by Pope Gelasius I in the fifth century as a truth of human existence under God and with government: “there are two things by which the world is principally ruled: the sacred authority of the Bishops and the royal power.” The Church stands higher in man’s loyalty and devotion because it leads the human person to salvation. Government, however, retains man’s devotion in regard to the authority of law because man is everywhere born into the natural association of political society. The essential truth is that the Church is immune from the civil power for its primary purposes of preaching the Word of God and forming its members in the faith. Of course, freedom of the church seems a misfit in a hyper-pluralist society and in modernity overall, Murray notes. Therefore, it became freedom of conscience. Murray suggests this is a diminishment from freedom of the church. In this regard, Murray suggests that James Madison’s famous account of religious conscience in his “Memorial and Remonstrance” is anticlerical because there is no suggestion of a corporate religious body or clergy in it, a rather strange omission. It’s a contortion of religious practice.

The upshot for the American Proposition is that the First Amendment is pro-religious belief and practice, ensuring that Americans are both citizens and creatures and given the space to learn, believe, and practice what they regard as the truth about themselves. The religion clauses, Murray stresses, make little sense if we do not presume that religious practice is good. Why protect religious exercise if it is detrimental to citizens and the country? And the design of the Free-Exercise Clause and the Establishment Clause interrelate by prohibiting a national religious establishment to ensure the free exercise of religious faith. Free exercise of religion, Murray says, stands higher than the prohibition on establishment of religion. As such, America’s charter document firmly limits federal power to secure religious practice. Freedom of the church is not listed, as such, in the First Amendment but the language used does extend beyond individual rights and insulates corporate religious bodies from government intrusion.

Murray gives an insightful example from 1783 where a papal nuncio in Paris sent a letter to Benjamin Franklin requesting permission to establish a diocese in America. Franklin relayed the correspondence to the Continental Congress who responded as follows: “the subject of his application to Doctor Franklin being purely spiritual, it is without the jurisdiction and powers of Congress, who have no authority to permit or refuse it, these powers being reserved to the several states individually.” These states soon declared their lack of jurisdiction over such matters. Murray adds, “In the United States the freedom of the Church was completely unfettered; she could organize herself with full independence that is her native right.” For Murray, the lived practice of the freedom of the church is integral to the separation between civil society and political society in America. The real promise of American life was that life could be lived in both spheres but that political society would understand the limits of its powers and how those limits made possible a life of freedom and virtue for citizens.

Law Unbound

Our problem is that we have moved away from believing in the efficacy of civil society to lead us to virtuous ends and a flourishing life. We clamor for more government, in virtually every sphere. Compounding our problems is that the underlying unity of the American Proposition has faded. As the transgender debate signals, we now struggle to even agree on who the human person really is. We define our commitment to the republic by the transfer payments we receive, and by our inviolable rights, stretching like an accordion, to encompass every willful desire of the postmodern mind. Our public obligations begin and end with our wills, not a reasonable discussion about what our common good might be and what that might require of us.

Murray noted that the barbarian stands at the door when argument becomes impossible or “when men cease to talk together according to reasonable laws.” His longer description is worthy of consideration:

Society becomes barbarian when men are huddled together under the rule of force and fear; when economic interests assume the primacy over higher values; when material standards of mass and quantity crush out the values of quality and excellence; when technology assumes an autonomous existence and embarks on a course of unlimited self-exploitation without purposeful guidance from the higher disciplines of politics and morals; when the state reaches the paradoxical point of being everywhere intrusive and also impotent; possessed of immense power and powerless to achieve rational ends; when the ways of men come under the sway of the instinctual, the impulsive, the compulsive. When things like this happen, barbarism is abroad …

Certain parts of Murray’s barbarian catalogue leap at you. Much of our country this summer has either lived under, or worried about living under “force and fear” because of sustained rioting and protesting, and attacks on the very legitimacy of law enforcement. Language in the public square now increasingly reduces the human person to race, class, and gender. You are either ontologically a victim or ontologically an oppressor and this totalitarian logic now grips us.

We are incapable of appealing to “the higher disciplines of politics and morals” to integrate technology into a worthy use for human dignity because we struggle to agree on anything regarding morality and how ethical politics might guide us. Our federal regulatory apparatus is immense and yet it primarily benefits the powerful and the established corporate elites. Confidence in the federal government is not a generally observed or felt attitude in America. We are able to communicate with everyone, yet our statements are marked by “instinctual, impulsive, compulsive” needs and not respectful and reasonable argument.

America stands at a crossroads, and the options before us, should we choose to live as one nation under God and the law, are not clear. We begin by making “a metaphysical decision about man.” Murray believed that the chief problem facing America was that we struggled to believe in the truth about man’s dignity and freedom because we resigned ourselves to a rationalist and scientific humanism that blandly accepted evolutionary progress in society forged by science, technology, and an unsupported conviction in man’s transcendent autonomy.

Many conservatives have thought the problem in America has been a vague moral relativism over the past generation, but that openness to limitless possibilities has inverted itself to an insistence on identity providing authentic meaning to human existence. This is the phenomenon of identity politics and intersectionality that is better understood as identitarian Marxism. Our racial and gender identities are how we access power and enforce our will upon the world. The law should uphold victim groups in a manner separate and higher than for “heteronormative” whites. Ideas, institutions, legacies, symbols that can be associated with “whiteness” must be expunged from public discourse and space. The totalitarian logic here leads to concentration camps. We have reached a dead end.

There is only one path forward for us as Americans, and that is the natural law that anchors and holds together our governing institutions and the political deliberation that sustains them. This is the upshot for Murray’s book and why it remains perennially true. Many claim that natural is beside the point, but we might express dramatically that we are failing because progressive law, egalitarian law, individualism law, secularism law, gender law, have proven incapable of building a civic order worthy of our devotion. Each time these elements of law move to the forefront, man’s misery with himself stands further revealed, and it produces social confusion and anger.

We need a concern for rights that undergirds the individual but that knows the organic society and the relational nature of man. We need to match progressivism in our concern for the worker while refusing to absorb us into economic class warriors. We need to reject the narrow rationalism of secularism while affirming the full potential of reason to know what is real. We know that we must update our moral categories and ethical thinking about law as experience reflects on the changing data of a pluralist and commercial society. We aim to give every person their due, but this change builds on our human nature, it does not abolish it. As Murray said, “the doctrine of natural law offers a more profound metaphysic, a more integral humanism, a fuller rationality, a more complete philosophy of man in his nature and history.”

What else is there at this point? Our rendezvous must be with the reason in man that is created and sustained by an eternal order of reason found in “God’s majestic will.” 

Richard M. Reinsch II is the editor of Seeking the Truth: An Orestes Brownson Anthology and is coauthor with Peter Augustine Lawler of A Constitution in Full: Recovering the Unwritten Foundation of American Liberty.

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William Gould

John Courtney Murray’s justly celebrated We Hold These Truths, published six decades ago, was written with two distinct but related aims in mind. The first was to establish that Catholicism and American democracy were fundamentally compatible, and the second was to elaborate a Catholic remedy for the disorders to which Murray believed democratic regimes (including the American republic) were prone.

In support of the first aim, Murray stressed the enormous importance of the Gelasian principle (“Christianity’s cardinal contribution to the Western political tradition”), which, by introducing a distinction between the sacred and the secular, broke with the social monism of antiquity and made possible the gradual articulation of further political and social differentiations—between state and society, for example—that are so crucial to modern Western Constitutionalism. He further argued that it was during the medieval era that the Gelasian principle first began to bear major political fruit, notably in the struggles between popes and emperors that marked the High Middle Ages, struggles that helped to clarify the respective jurisdictions of the two realms. In addition, Murray characterized St. Thomas Aquinas as “the first Whig”; maintained that scholasticism was “formative of the liberal tradition of the West”; and argued that the democratic idea was already implicit in the medieval period, which recognized both the principle of popular representation and the related principle of the consent of the governed, though of course in modern times these principles enjoyed “an amplitude of meaning never known in history.” And so, modern liberal democracy, as it is sometimes called, was really the fruit of the scholasticism and nascent constitutionalism of the Middle Ages, operating under the inspiration of the Gelasian principle. In short, the American polity was actually the fulfillment of the medieval Catholic political heritage.

Murray recognized of course that the Church of his day still had yet to embrace democracy and that liberalism had been the focus of many papal denunciations. In response, he distinguished between two types of liberalism. The first, prevalent mainly on the Continent, was a virulently secular, anti-clerical type of democratic absolutism that rejected the distinction between state and society, and sought to destroy the Church and replace it with a secular religion of its own. The second, which flourished in the Anglo-American world, was essentially constitutionalist in nature, acknowledged the distinction between society and state, and recognized the Church’s rightful autonomy. Accordingly, Murray held that the form of liberalism prevalent in Europe was actually “a deformation of the liberal tradition” and that it was only to this type that the papal condemnations properly applied, while Anglo-American liberalism, by virtue of having remained faithful to its medieval origins, had proved itself the authentic form of liberalism and the true heir of the Catholic tradition.

Even as he sought to reconcile Catholic doctrine with America’s framework of democratic institutions, Murray was also insistent that Catholicism, for its part, had much to contribute to the health of American democracy. For he was convinced that democratic societies, if they are to remain vital, require the existence of a strong public consensus firmly rooted in sound morality. Furthermore it was Murray’s conviction that free government is not inevitable, but rather a continuous and ongoing achievement profoundly dependent on the existence of a virtuous citizenry, and that, consequently, democratic societies needed to be placed on firm moral foundations if they were to be sustained. Murray also maintained that the American experience furnished an excellent illustration of this insight, for it was precisely because of the traditionally strong moral character of its citizenry that American society had been able to sustain the severe demands of being a free society for so long. Murray feared that this strong moral consensus had unfortunately begun to suffer serious erosion and that its renewal was essential if democracy in this country was to be restored to its former vigor.

Part of the challenge here, Murray believed, lay in the religiously pluralistic character of American society, which by its very nature has a tendency to threaten social unity. But he did not believe this was the principal source of the problem, since religious divisions had always characterized American life, while the unraveling of the consensus was a fairly new development. The main culprit, as Murray as saw it, was rather the recent emergence in America of a militant secular liberalism reminiscent of the kind that had long prevailed in Continental Europe.

Murray saw two dangers in this newly emergent secular liberalism. The first was that secular liberalism’s skepticism about the possibility of discovering objective moral principles and its consequent suspicion of any sort of public consensus led it to propose the ideal of the “open society,” a society that scorned any sort of public consensus in favor of unlimited pluralism, tolerance, freedom of expression, and diversity. In Murray’s view, an open society would invite social atomism and fragmentation, and liberal support for such a society reflected a naïve grasp of the foundations of social order.

The second danger was the obverse of the first. Precisely because of the moral and social fragmentation occasioned by the unraveling of the historic consensus, Murray thought “there was some danger that a false, fallacious, or fictitious unity might be foisted on the American people.” This threat appeared in two forms. The first, a reflection of the Cold War context in which he wrote, was that the American people, uncertain about what they stood for as a people, might embrace “a unity based simply on negation,” that is, a unity rooted simply in their opposition to communism. The second, and to Murray the more serious threat, was that owing to the persistence of religious pluralism, on the one hand, and the disintegrative and atomistic influences of the “open society,” on the other, the American people might be persuaded to adopt “a substitute secular faith” to provide the social unity they were otherwise lacking.

The primary candidate for this unifying secular religion, Murray felt sure, would be “democracy conceived as a quasi-religious faith.” The result would be a political and social monism of the type imposed by laicist liberalism on parts of Continental Europe (what J. L. Talmon called “Totalitarian Democracy”) in which democracy would be acknowledged not only as the basis of our form of government and our social unity, but as the foundation of the American way of life. This democratic faith would be publicly recognized as superseding and “transcendent to all the religious divisions that are unfortunately among us”; so much so that the traditional religious faiths, though still allowed to exist, would “be judged not in terms of whether they be true or false, but in terms of whether they be American or un-American.” And the public school system would constitute “a sort of ministry of the Democratic Church, whose function is to gather up all the flock into the one true fold—the one true democratic fold; and initiate them into the common mind and faith.”

In light of this dire prognosis, Murray proposed the informal adoption of an American public philosophy rooted in the principles of the Catholic natural law tradition that would serve as the basis for a renewal of the national life. This would constitute a restoration of the nation’s historic consensus or public philosophy. And it was precisely here, he contended, that the Catholic community in the United States could make an important contribution. For America’s Catholics were the heirs of the natural law tradition, that tradition of civility and reasoned argument on which the nation had originally been founded. They were thus in a unique position to serve as “a creative minority” in American life, capable of articulating this natural law heritage and fostering its recovery as the animating principle of America’s public philosophy.

With the election of John Kennedy in 1960 and the reforms of Vatican II (including the Declaration on Religious Freedom in which Murray played such an important role), it seemed that much of what Murray had to say was being vindicated. Viewed from the perspective of a full six decades later, however, there is greater reason for doubt.

To begin with, Murray’s synthesis of Catholicism with liberal and American thought seems far more questionable than it did to many at the time. For example, while plausibly arguing that the Gelasian principle and the nascent constitutionalism of the medieval era contributed significantly to the formation of modern democracy, Murray generally ignores the vast differences between medieval times and our own. More fundamentally, he tends to understate the gulf between the traditional Catholic social ethic, with its characteristic emphases on virtue, duty, and community, and that of liberalism, with its characteristic stress on individual rights and personal autonomy. Nor will Murray’s differentiated view of liberalism, for all of its real merit, overcome this difficulty. For despite some important differences, European and Anglo-American liberals of the eighteenth and nineteenth centuries shared a deeply individualistic conception of political and social life focused primarily on ensuring personal freedom, physical security, and material well-being; rejected the classical emphasis on the cultivation of a virtuous citizenry, placing their hopes instead in artfully designed political and social institutions that would channel humanity’s selfish passions into publicly beneficial directions like commerce, and in a clash of “opposite and rival interests” that would supply “the defect of better motives”; and worked vigorously for the privatization of religion so as to deprive it of any voice or role in public life (think, for example, of Locke and Jefferson). In short, Murray fails to recognize the fundamentally problematic nature of liberalism that critics such as Patrick Deneen have pointed out.

The other striking thing in reading We Hold These Truths all these years after it first appeared is how much America has changed during the past six decades. The moral consensus that Murray was so concerned about trying to restore has suffered much further erosion in the interval since We Hold first appeared. Many issues that were not even on the political radar in Murray’s day, such as debates over abortion and same-sex marriage, now surface prominently in our own. Indeed the subject of abortion does not appear at all in We Hold These Truths; in 1960 the idea would have been inconceivable that six decades hence same-sex marriage would be the law of the land.

At the same time (and not coincidentally), the past several decades have also witnessed (as Murray feared) the growth of an increasingly vocal and influential secularist liberalism. Indeed, of the four main camps or “conspiracies,” Protestant, Catholic, Jewish, and secularist, that Murray saw making up the pluralist society of his time, the secularist camp has arguably prospered the most in this period, giving rise to understandable concerns about “a naked public square.” Moreover, America’s racial, ethnic, cultural, and religious diversity has also substantially increased, leading to a growing sense of fragmentation and a seemingly endless culture war. Finally, of course, it should not go unmentioned that while the economic and social status of American Catholics has risen considerably since the time Murray wrote, the U.S. Catholic Church itself has suffered an enormous decline in public regard and prestige as a result of the highly publicized scandals involving sexual abuse by Catholic clergy.

In view of the vast changes that have taken place in American society since Murray wrote, the question understandably arises: Is Murray’s work still relevant? Does it have any application to our current situation? In my judgment, the answer is yes. Indeed, I find two aspects of his thought particularly valuable in the current context. The first is Murray’s contribution as a philosopher of consensus; the second is his contribution as a philosopher of pluralism.

Let me begin with Murray’s contribution as a philosopher of consensus. Murray fully grasped the shallowness and impracticality of the liberal ideal of the “open society,” and rightly recognized the fragility of social unity and the need for public consensus. He also correctly saw that opposition to communism, while necessary, could not serve as a genuine public philosophy, that the American people, as a people, needed to know and affirm what they were for and not only what they were against. Consequently, he went about promoting the acceptance of a public philosophy grounded in sound moral principles.

Some features of this pubic philosophy remain relevant to our time. First, Murray believed the Church had a crucial culture-forming role, one of providing society with its spiritual substance. Moreover, contrary to sectarian approaches, the Church needed to be what Martin Marty has called “a public church,” a church that (in Bryan Hehir’s words) “accepts social responsibility for the common good and envisions its teaching role as a participation in the wider social debate.” Of course, the enormous damage done to the Church’s reputation by the sex abuse scandal has doubtless diminished its ability to play a major role here, but one may hope that it has not been undermined completely, and that, over time, as the impact of the scandal becomes less pronounced, that role can expand. At the same time, I believe that Murray, like Tocqueville, would not want the Church to be or to appear to be aligned with any political party or political movement, and that he would be troubled by the close identification of the American hierarchy with the Republican Party that has developed in recent years.

Second, Murray stressed the importance of the natural law tradition, not only because he believed natural law to be true, but because he thought its emphasis on civility and reasoned public argument offered a better method of pursuing public discourse in a pluralistic society than any other available to it. Moreover, the natural law approach furnishes concepts and categories that can facilitate nuanced and sophisticated analysis and judgment concerning complex matters of public policy. Third, there is Murray’s salutary stress on the intimate link between a virtuous citizenry and the preservation of political freedom. As he memorably put it in We Hold, “Part of the inner architecture of the American ideal of freedom has been the profound conviction that only a virtuous people can be free.”

Finally, Murray proposed that the Catholic laity could serve as “a creative minority” in American culture. In the professions they enter, the associations they join or form, the political movements that they attach themselves to, in the neighborhoods where they reside—in all these varied settings committed Catholic laity could bring Gospel values to bear. They could thus provide a communitarian corrective to the excessive individualism that marks so much of our culture by engaging the culture and promoting the principles of Catholic social teaching. In doing so, they would also be offering an alternative of sorts to the political configurations of left and right that are currently dominant in our political culture, providing a political posture that is somewhat culturally conservative by contemporary standards but economically progressive.

Murray’s contribution as a philosopher of pluralism is also important and relevant today. Murray never supposed that restoring the public consensus would be easy. Nor was he under any illusion that America’s religious pluralism was going to disappear in the foreseeable future; on the contrary, he was acutely aware of the depth of the divisions separating this country’s various religious traditions. Consequently, while Murray sought a stronger moral consensus, he was insistent that the institutional autonomy and integrity of these traditional faiths (including, of course, Roman Catholicism) be respected by the state, and he strongly opposed any effort to impose a false unity on the American people, firmly rejecting, as we have seen, the attempt by some liberals to turn democracy into a kind of secular religion, the Democratic Faith. This is reflected in his conception of religious liberty, which places heavy stress not only on freedom of individual conscience, but also on the importance of the institutional autonomy and integrity of religious bodies. Accordingly, were he alive today, Murray would undoubtedly be calling for very robust conscience clauses so that religious institutions would not be compelled by law to act in ways contrary to their principles; so that, for example, Catholic hospitals would not be required to provide contraceptives or to perform abortions.

Furthermore, recognizing that “the civilization of the pluralist society,” as he called it, was a seemingly permanent feature of modern Western life, Murray placed great emphasis on the importance of dialogue, not only to encourage the development of an eventual consensus, but, initially, simply to clarify the nature of the divisions separating the various camps or conspiracies making up American society. He hoped by dialogue to

dissolve the structure of war that underlies the pluralistic society, and erect the more civilized structure of the dialogue. It would be no less sharply pluralistic, but rather more so, since the real pluralisms would be clarified out of their present confusion.

Murray regarded this clarification of differences, this making the divergent points of view of the various contending parties intelligible to one another, as a substantial achievement and a necessary preliminary to future consensus. It was his fervent hope that the various conspiracies making up American society would engage each other in dialogue, initially clarifying their different positions and gradually reaching greater consensus, especially over moral matters.

In a society like ours, marked as it is by so much fragmentation and by such deep political, racial, religious, and cultural divisions, Murray’s call for civil discourse and sincere, respectful dialogue, seems to me to be the only reasonable way forward. After all, no matter who wins the upcoming presidential election, no matter what future Supreme Court decisions are handed down on abortion or other controversial issues, no matter who gets the upper hand in our ongoing culture wars, we will all—including those with whom we fervently disagree—still be sharing the same country. No one is planning on leaving. Civil and respectful dialogue is a lot better than civil war.  

William Gould is Assistant Dean for Juniors at Fordham University.

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Mary C. Segers

Sixty years ago, Sheed & Ward published John Courtney Murray’s We Hold These Truths: Catholic Reflections on the American Proposition, a now-classic book explaining how and why Roman Catholics could be both good Catholics and loyal American citizens committed to religious liberty and constitutional government. The time was ripe for such an exposition, given the 1960 political campaign of John F. Kennedy, the first Catholic to be elected president of the United States.[1] When his book was published, Murray was the subject of the cover story in the December 12, 1960 issue of Time.

As a Jesuit theologian and seminary professor, Murray’s scholarly interests were religious freedom, church-state separation, and the role of religion in public life. His contribution to public discourse was two-fold. First, he argued in We Hold These Truths that constitutional provisions of religious liberty and church-state separation were articles of civil peace, not theological doctrines. As civil arrangements, they left the church free to worship and did not require the church to assent to falsehood or indifferentism. Moreover, he contended, Catholicism taught as true those doctrines of human dignity, justice, and freedom that were central to the American tradition of equality and inalienable rights. He thus insisted that far from making Catholics bad citizens, Catholicism provided a tradition of moral reasoning that supported the American tradition of liberal democracy and constitutional rights. As J. Leon Hooper put it, Murray was “known, irreverently but accurately, as a key agent in making Roman Catholics safe for America, while also making America safe for Catholics.”[2]

Murray’s second important contribution to public discourse was his work as a major architect of the Declaration on Religious Freedom, one of the last documents to emerge from the deliberations of the Second Vatican Council in 1965. Murray took very seriously the religious pluralism of American society; he valued religious diversity and respected the rights of fellow religionists to contribute their insights to public debate. At Vatican II he argued for religious liberty based on human dignity and the corollary position of religious toleration for non-Catholics. According to the Declaration, “This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that in matters religious no one is to be forced to act in a manner contrary to his own beliefs. Nor is anyone to be restrained from acting in accordance with his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.”[3] We shall return to this caveat “within due limits,” later in this essay.

Given Murray’s considerable accomplishments, which occurred three generations ago, we may properly ask: what is the contemporary relevance of his thought? Is he still relevant and, if so, how? What can we learn from his reflections on religious liberty and church-state relations in the American context? If Murray were alive today, what would he make of our current political situation?

In the sixty years since publication of We Hold These Truths, new issues have arisen—changes that he could not have anticipated and could not have been expected to address. The religious diversity of American society has expanded to include a growing Islamic population in the United States and an influential evangelical Christian presence in the public arena. New bioethical issues have developed concerning the beginning and the end of human life (abortion and physician-assisted suicide). Proponents of religious liberty have wondered if Catholic acceptance of such freedom as a universal human right applied also to the internal workings of the church itself. That is, would religious freedom rooted in human dignity extend also to Christian freedom within the church? Would religious liberty imply toleration within the church of the rights and claims of dissenters?[4]

To provide context, I list here some major events and changes that have occurred since Murray’s death in 1967: second wave feminism; the advent of neoconservatives; Nixon, Watergate, impeachment; the Reagan years; the end of the Cold War and the fall of the Berlin Wall; the attack on the World Trade Center and the Pentagon; two long, largely unsuccessful wars in Iraq and Afghanistan; the 2008 Great Recession; the election of the first African-American president in 2008 and again in 2012; the political ascendancy of Christian evangelicals in the 1980s and beyond; the social acceptance of gays and lesbians; the legal acceptance of same-sex marriage; the election as president of a real-estate businessman with no public office-holding experience; the deadly coronavirus epidemic; the killing of George Floyd and the ensuing social protest in May, June, and July of 2020.

A major crisis in this cascade of events is the Catholic clergy sex abuse scandal (1985–2020) and the resulting loss of credibility by the institutional church (nationally and globally). Twenty dioceses have declared bankruptcy; the cost of settlements over the last thirty-five years is in the billions; and the church has had to devote time and energy to costly litigation and lobbying of state legislatures to protect institutional interests. In the United States, church membership has declined (according to the Pew Charitable Trust’s Religious Landscape Study of 2015). More consequential is the loss of trust and confidence in church leaders.

Given these circumstances, is Murray’s thought still relevant and, if so, how? It seems safe to say that, had Murray lived longer, he would have been very busy writing about what he called “the American Proposition” or consensus—that all men (and women) are “created equal and endowed by their Creator with certain inalienable rights.” Logically, because of his commitment to equal dignity, human rights, and constitutional democracy, Murray would have argued vigorously against racial and sexual inequality and strongly supported the eradication of racism and sexism from American thought, culture, politics, and society.

I suspect that Murray would also have questioned the common linguistic usage of terms such as “fake news” or the “politicizing of medicine and science.” He argued that a philosophy of natural law and natural rights is based upon a worldview grounded in a realist epistemology. He assumed that truth exists and can be discovered through philosophical reflection, rational deliberation, and civil argument. He described his choice of title as follows: “The sense of the famous phrase is simply this: There are truths, and we hold them, and we here lay them down as the basis and inspiration of the American project, this constitutional commonwealth.”[5]

Given his concern with epistemology, I think Murray would be appalled by the denial and dismissal of facts, factual knowledge, philosophical reflection, historical scholarship, medical studies, and environmental research into topics such as climate change. Political and policy decisions must be based on facts and data, as Governor Andrew Cuomo often told New Yorkers at the height of the coronavirus pandemic, not on feelings. Governmental decisions must be based upon factual knowledge in order to provide guidelines to society.

Finally, the current pandemic provides a striking example of the debate about religious liberty in the United States. When it became apparent in March 2020 that the spread of the coronavirus was becoming a major threat to public health, the federal and state governments decided upon a lockdown or forced retreat, a policy of closing most businesses, schools, corporations, theaters, movie theaters, retail stores, restaurants and bars, and churches. The scope of the shutdown varied from state to state according to the severity of the epidemic; states in the Northeast and some hotspot cities in other parts of the country (Seattle, New Orleans, Chicago) were most severely affected in the first months of the virus (March through June). Only essential businesses and services were allowed to remain open: pharmacies, hospitals, grocery stores, and liquor stores were considered “essential.” With the nation shut down, the economy came to a halt as many people were dismissed or furloughed.

Anxious to revive a failing economy, President Trump suggested April 12, Easter Sunday, as the target date for a reopening. This proved to be too early, given the enormous threat to public health. However, the widespread cancellation of public religious activities had a palpable impact on church life and community. It also had a major impact on congregational finances; since congregations were not meeting in churches, there were no Sabbath-day collections. Most churches pay 80 percent of their bills with weekly church offerings. Gradually, then, a few pastors (church leaders) began to defy government orders and hold public church meetings. They also filed suits in federal courts.

The situation worsened dramatically when President Trump demanded that states allow places of worship to reopen “right away” and threatened to overrule any state that defied him. The president announced: “The governors need to do the right thing and allow these very important, essential places of faith to open right now for this weekend. If they don’t do it, I will override the governors. In America, we need more prayer, not less.”[6]

The reaction to President Trump’s announcement was mixed. Some evangelical supporters praised his statement, saying they felt vindicated by his assertion that “churches are essential to our communities.” (Some thought it particularly galling that liquor stores were considered an essential service but churches were not.) Other religious leaders expressed more caution. Bishop Kenneth Carter, who heads the Florida Conference of the United Methodist Church, said its seven hundred churches would look at reopening sometime after June 15.

Several governors (Gov. Gavin Newsom of California, Gov. J. B. Pritzker of Illinois) indicated they would make their own decisions without regard to the president’s demand. Gov. Pritzker said he would “continue to operate on the basis of science and data” when deciding when it was safe to reopen. The mayor of Chicago (Lori Lightfoot) rejected the president’s call to open houses of worship immediately, saying he had no authority to do so. The New York Times quoted Harold Hongju Koh, a Yale Law School professor and former Obama administration official, who said: “He (the president) could make a statement, and even call it an ‘order,’ but there is no legal compulsion for the state governors to comply.”[7]

How did lay Catholics and Catholic church leaders respond to these pressures? They complied with the restrictions and had to attend virtual, online Masses for four months from March to late June. This meant that they were unable to receive the Eucharist for that entire period (a rather serious matter in the devotional life of most Catholics). Church leaders found themselves balancing the desire to reopen and worship together against the health consequences of moving too fast. They followed government guidelines and began celebrating public Masses in late June and early July.

Scriptural passages provided an important rationale for compliance with government regulations. By far the most important passage cited was the Great Commandment that stresses love of God and love of neighbor as one’s self. This clarified the prescriptions to wear masks and observe safe distancing because these practices were oriented towards protection of others as well as self-protection. Similarly, scriptural passages about prayer could partially compensate for the lack of Holy Communion at virtual Masses. In particular, the following passage may have conveyed a sense of God’s presence: “Where two or three [persons] are gathered together [in prayer], there am I in the midst of them.”

During this pandemic, most Catholic pastors have wisely embraced draconian restrictions on public worship, integrating a Catholic sacramental awareness with an equally strong Catholic commitment to the common good. Murray insisted upon public order and the common good as secular categories transmitted through tradition—as secular ends or aims or purposes pursued by civil government.

Perhaps the most important justification for moral conduct during the pandemic was Murray’s explanation of religious liberty in the Declaration on Religious Freedom enacted at Vatican II. According to Murray, the right to religious freedom may be basic and fundamental, but it is not absolute. It is limited—as in this case. The duty to love God and one’s neighbor can limit what one can freely do. Freedom has limits. Another example of such a limit on one’s religious freedom is the state law that prohibits the handling of poisonous snakes in worship services. The risk of injury or possible death to others is too great to permit this practice. Our religious freedom is “within due limits.”

I hope that this brief review is a convincing account of Murray’s relevance to contemporary political theory and to the study of religion and politics.  

Mary C. Segers is a professor of political science at Rutgers University in Newark, New Jersey.