restricted access John Courtney Murray, Religious Liberty, and Modernity: Part II: Modern Constitutional Democracy
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John Courtney Murray, Religious Liberty, and Modernity
Part II: Modern Constitutional Democracy1


The argument that students of Murray make in defense of liberal or constitutional democracy as the best regime simply for the Catholic understanding can be found in Murray’s own writings, at least in outline. It is a historical argument, and runs as follows. Unlike the liberal or laicist democracies of nineteenth-century Europe, which were in fact more or less what I have described as Hobbesian or Lockean, American constitutional democracy is not characterized by an indifference to the truth of religion or, worse, by a rationalist faith that seeks to rid the world of "superstition." The American political order is quite different. As its Declaration of Independence says, it conceives of rights as endowed by a sovereign God, and the belief in those rights as a "holding of truths."2 In addition, the First Amendment’s free exercise clause makes clear that the political agreement reached by the Framers was an agreement of religious men or representatives of a religious people, who wished their government to have a care for the protection of their religion from government interference. This people was, certainly, a Protestant people; they shared a Protestant consensus or "public philosophy," and [End Page 49] their disagreements presupposed this more fundamental consensus or agreement. But the principles that they articulated in the First Amendment are in fact truly Catholic principles. They evince a care for religion. Moreover, the distinction between the State and civil society is, both historically and theologically, a Catholic principle, for the Galatian doctrine of the two swords, altogether unknown to antiquity but required by Christianity, is what has eventually borne fruit as the distinction between the state and society. Finally, the complementary notion of indirect government through a secular state, which informs the American political order, is first found in the writings of John of Paris.

Now to be sure, the modern understanding of all of these notions found its initial expression in writers such as Hobbes and Locke, and was largely directed against the Catholic Church, which failed to follow John of Paris and instead sought confessional Catholic states. But this too was a historical accident. The Church had, after the collapse of the Roman Empire, to fill the civilizational void of rule left by that collapse. Having done its work and assisted the maturation of Western man, however, the Church failed to step aside as its own principles, had they been fully understood, would have dictated. And so it was left to the Church’s secularist opponents to articulate the doctrines that gave rise to constitutional democracy. Now, standing as it were at the end of this maturation, if not at the end of history, the Church recognizes the fully awakened consciousness of human freedom and reclaims as her own the principle of human liberty that informs constitutional democracy. She recognizes the truth and justice of American Constitutional democracy as the best regime simply.3

That is Murray’s historical, and historicist, argument. There is an initial difficulty with it: while there are undoubtedly Christian influences on the American Founding, hard historical evidence indicates that Jefferson and Madison––upon whose work the American Founding rests––were Hobbesian or Lockean, intent on promoting a soft or easygoing indifference in their fellow citizens in [End Page 50] the name of comfortable self-preservation.4 Murray’s broad reading of the free exercise clause, which finds that the American regime intended to favor religious practice, mistakes a difference of tactics for a difference of intent. "Our sister states in Pennsylvania and New York," says Jefferson, "have made the happy discovery that the way to silence religious disputes, is to take no notice of them. Let us too give this experiment fair play."5

More broadly, Murray’s argument is supported by rather thin evidence, including appeals to the true thought of Roger Williams (who was not one of the Framers),6 and an uncritical dependence on Clinton Rossiter and on the Carlisle brothers’ neo-Hegelian history of political thought.7 As a result, it tends to confuse a government that "derives its just powers from...