Books and Review

A Contested Legacy

Copyright (c) 1993 First Things 30 (February 1993): 54-57.

Reviewed by James Finn


TOWARD THE END of Vatican Council II (1962-1965), John Courtney Murray, S.J., in the company of other clerics, concelebrated mass with Pope Paul VI. Like most other Americans who were in St. Peter's at the time, I felt that it was a much-deserved and long-overdue public ecclesiastical acknowledgment of the achievement of America's leading Catholic theologian, who was also an exemplar of how to conduct civil public discourse. It was common knowledge that in the 1950s church authorities had suppressed articles written by Murray on various aspects of religious liberty and church-state relations, that he had been "disinvited" to opening sessions of the Council, and that only after Cardinal Spellman's intervention had he been invited as a peritus, still in time to make significant contributions to the "Declaration on Religious Freedom" (Dignitate Humanae), which Paul VI was to term "one of the major texts of the Council." His preeminence was now recognized and unassailable.

However, even during the few years left to him-he died in 1967-and certainly in the years immediately after his death, Murray's influence was waning. Even many admirers of the person and his work believed that he had worked in a worn-out mode of thought and discourse, classicist and static, and that it was time to press ahead, beyond the boundaries that had constrained him. In recent years there has been a resurgence of interest in his work, a recognition that Murray was quite conscious of the difference and possible clash between classicism and historical consciousness, and that there are riches in the corpus of his work that have yet to be fully appropriated. This renewed interest derives at least partly from the perception that our society is now riven by disputes over issues that were precisely Murray's concern-religious liberty, the role of religion in a democracy, relations of church to state, the moral bases of American society. John Courtney Murray and the American Civil Conversation is a strong and welcome confirmation of this interest. Thirteen contributors, including the two editors, Robert P. Hunt and Kenneth L. Grasso, address different aspects of Murray's work, assess what he achieved-or failed to achieve-and speculate about how he would approach some of our present problems.

THE UNDERTAKING to which they bend their efforts is not an easy one. Not only are the issues profound, but Murray's thinking about them developed and changed over the years. After reading this book I concluded that were all the contributors locked in a room to discuss Murray's past and present contribution, it would be a far distant day before they would achieve the civil conversation denoted in the title of the book. For Murray himself noted that even real disagreement-something more than mere opposing opinions-is a real achievement and depends upon mutual understanding of the universe of moral discourse in which conversation takes place. And even before they could reach that stage these writers would have to clear up some differences about facts and definitions.

For example, William R. Luckey, who provides a specifically Catholic perspective, states that Murray was "the moving force behind, and the intellectual architect of, the document Dignitate Humanae"; but Francis Canavan, S.J., writes that Murray was not "the only or the principal person who influenced Vatican II's Declaration on Religious Freedom," and explains why Murray was less than satisfied with that document. Another example: In his warm assessment of Murray, Luckey writes that Murray was "a thoroughly orthodox Catholic-no liberal (in any sense of the term) and no indifferentist" (emphasis added). But others differ. Richard John Neuhaus, for one, says that "against the grain of his time, he remained, most determinedly, a liberal." Others as well refer to Murray's liberalism.

Some differences such as these could probably be settled with only slight difficulty. There are others, however, that are deeper and their ready resolution doubtful. In some of Murray's most important essays, there are frequent references to "consensus," "public philosophy," and "natural law," with less frequent comments about their relation to one another. For Murray consensus did not mean mere "majority opinion," although he was acutely aware that it was frequently used in that sense. But he insisted that it was the apt and historical word to designate what he intended. By the American consensus he meant the public philosophy of America. Some quotations from We Hold These Truths will help here.

"I will use the terms pretty much synonymously, though there is a nuance of meaning. The term 'public philosophy' emphasizes an objectivity of content; the term 'consensus' emphasizes a subjectivity of persuasion."

" 'We hold these truths . . . ' That is to say, we have a public philosophy; as a people we have come to a consensus. . . . [T]he affirmation of these truths pretends to and pos-sesses a certain universal validity. Not only do we hold these truths; they are human truths of a sort that man as such is bound to hold."

"I would maintain, for instance, that the public consensus of the West, and of the United States as an historic participant in the Western style of civilization, would remain the public consensus even if it were held, as perhaps it is held, only by a minority within the West. The validity of the consensus is radically independent of its possible status as either majority or minority opinion."

"My proposition is that only the theory of natural law is able to give an account of the public moral experience that is the public consensus."

TO MANY contemporary ears such assertions will sound both unfamiliar and uncongenial. They run against the current of much of our public discourse, and they are not accepted by all the writers in this book. Yet Murray stated that the only presuppositions to the doctrine of natural law are threefold:

that reality is intelligible; that humankind is intelligent; and that reality, grasped by the intelligence, imposes obligations on human actions or abstention from actions.

The relations Murray established among the key terms-consensus, public philosophy, and natural law-are complex and do not always seem to hold steady. Murray himself decried the attacks on the moral tradition that shaped the American consensus, deplored the decay of the public philosophy, and foresaw the possibility that "the many-storeyed mansion of democracy will be dismantled, leveled to the dimensions of a flat majoritarianism. . . ." Here he seemed to acknowledge that the consensus (public philosophy) could slip, erode, decay.

The decay of our public philosophy has, indeed, proceeded apace since Murray's death and there is open debate about whether we can or even should have one. It is at this more advanced stage that the present writers participate in the conversation. Several of them cope valiantly with the underlying philosophical and theological issues-Robert F. Cuervo, Kenneth L. Grasso, Peter Augustine Lawler, David T. Mason. Their arguments, going along different paths, sometimes cross at points of agreement, but they cannot be said to converge. They hold different opinions, for example, on whether, how, and to what extent the disintegration of natural law doctrine can be reversed and whether, therefore, a consensus (public philosophy) is a realistic possibility.

In his persuasive, thoughtful essay David Novak puts the question directly: "If teleological metaphysics and its natural theology can no longer cogently ground natural law by connecting it to God,"-as he has just argued-"what can reestablish that grounding connect?" He asserts that Murray's "metaphysically constituted theology of Aristotelian Thomism" cannot do the trick since it is based on a correspondence theory of truth that is no longer accepted. All is not lost, however, in Novak's approach. Brutally truncated, his argument is that since covenantal communities of faith accept the revealed word of God as normative, a correspondence theory of truth still holds within them, making it possible to develop within each an accepted understanding of natural law. Discourse can then take place between these religious communities before they attempt to engage, on these terms, the secular world.

Without engaging as directly with these philosophical and theological questions, other writers deal with questions that are equally pressing, and sometimes politically divisive. Canavan's lucid explanation of Murray's dissatisfaction with Dignitate Humanae leads to his conclusion: "Murray's doctrine on religious freedom is thus based not on the subjective rights of conscience but the objective natural goals of civil society. From the latter a theory of constitutional government can be inferred." And later, "Murray clearly would agree that a constitutionalism based solely or primarily on the rights of the individual is a weak one and leads eventually to a monistic society. He might also agree today that is the direction in which our constitutionalism is moving." If this movement continues, if increasing pluralism and a continually decaying consensus constitute our future, who can predict the outcome? The American experiment that has been ours, in which political freedom and religious liberty have flourished, may prove, Canavan chillingly concludes, "to have been a happy moment in history."

IN AN EQUALLY lucid essay dealing with religious liberty, Gerard V. Bradley takes issue with Murray's well-known description of the religion clauses of the First Amendment as "Articles of Peace" rather than "Articles of Faith." In Murray's analysis, the clauses depend on no prior religious suppositions, and are void of religious content. They are law, not dogma, and require not religious assent but civil obedience. This sets them apart from "Articles of Faith" invested with sectarian tenets regarding such profound religious matters as truth, human freedom, faith, conscience. Those who would so read them are mistaken and misguided.

This distinction has served a historically useful purpose but, Bradley argues, it now favors those who would invest the clauses with particular meaning and disarms those who oppose this reading. The distinction has become a useful tool for those who would privatize religion and evacuate it from the public arena. There is general agreement that over at least the last four decades Supreme Court decisions on matters of religion and the state have been marked by sharp differences and vast confusion. One Supreme Court justice has said that Court decisions on key Establishment Clause issues are decided on "our own prepossession," and another that the Court simply decides what is the best national policy. And where do these justices get their presuppositions by which they determine the "best" national policy? Today, according to Bradley, from some variant of liberal individualism, which is now in the cultural mainstream. Bradley argues persuasively that we should acknowledge that the religion clauses grew out of a Christian worldview. Although they guarantee religious freedom for all, they are indeed a Christian artifact. Building on that historical truth, we should return to the "originating context" of the First Amendment and rescue these clauses from the "judicialization" of the church-state issues.

In an interesting performance in which he seems eager to embrace Murray in the generality and dispute him in the particulars, John C. Cort argues that the realist Murray turned "a preferential option for the poor into a preferential option for a free economy," and that he did so on the basis of a utopian ideal. He then trains his guns on other targets, notably Michael Novak, who he thinks have misunderstood economic rights.

SURMISING, no doubt correctly, that Murray would be intrigued by many of the challenges that Americans, religious and nonreligious, face today, Mary C. Segers attempts to assay what his position on the legalities of abortion might be today. She states that by insisting on the distinction between sin and crime-not all sins are or should be criminalized-Murray thereby reserved to the private citizen whether, for example, birth control is moral or not. With that as a keystone, she argues to the following conclusion: "By all of Murray's criteria, abortion may more properly be categorized as an issue of private morality. Since this is the case, public policy may relegate abortion to the private sphere of moral decision making by individual women who best know their own circumstances and who are directly affected by involuntary pregnancy."

The suspicion that other contributors to this volume would not follow Ms. Segers down this path is immediately confirmed by Robert P. Hunt's "Moral Orthodoxy and the Procedural Republic." In the course of his argument against the merely procedural republic, Hunt says that "those who would appropriate Murray as a principled or practical defender of the 'neutral' state fail to consider seriously Murray's commitment to the American polity as an inevitably moral enterprise. This failure is grounded in a desire, on the appropriator's part, to collapse moral issues into the private realm of the autonomous selfhood-as evidenced by the 'pro-choice' argument in the contemporary abortion debate in America."

The volume concludes with George Weigel's resounding affirmation of Murray's continuing value as a resource in our contemporary Kulturkampf. He outlines usefully and succinctly the issues we must address if we wish to participate, in Murray's spirit, in our "American civil conversation." As the preceding essays make almost cruelly clear, that task will not be easy. But as Murray once wrote, in a different context, "I do not say that it is possible, I only say that it is necessary." If we are to have a religiously informed public philosophy, it is necessary that we engage in the civil conversation that is still fostered by a few forums that are congenial to such discourse.

Some minor observations: In a collection that covers so much ground, I missed an analysis of John F. Kennedy's pre-election Houston speech to Protestant ministers. Not only did Murray contribute to that speech, but as a milestone in matters of individual conscience and civil obligation it remains a contentious document today. I also missed a bibliography, even a selected one, of Murray's writings. It would probably have prevented one of the writers from referring to Murray's sixty-nine articles as if that were his total output. Maybe more important is the absence of an index, which would have been most useful. Finally, at least once Paul Blanshard's name is given its frequent misspelling.

JAMES FINN is Senior Editor of Freedom Review, the bimonthly magazine published by Freedom House.