Month: November 2021

On May 9, 2021, Rosario Livatino, a magistrate little known outside of Italy, was beatified. In the basilica cathedral of Agrigento in Sicily, the faithful venerated the bloodied shirt worn by Blessed Rosario during the moment of his horrific murder by the Stidda, a rival gang of the more famous Sicilian Mafia. In Rome, Pope Francis commented, “In his service to the common good, as an exemplary judge who never succumbed to corruption, he sought to judge not to condemn but to redeem . . . . His work placed him firmly under the protection of God. For this reason, he became a witness to the Gospel even unto a heroic death.”

People outside of Italy might imagine that the violent mob murder of a magistrate perhaps occurred in the time of Al Capone, of tommy guns, and Prohibition. However, Blessed Rosario was gunned down off the side of a highway in Sicily on the morning of September 21, 1990, a date firmly within the lifetime of most adults. Whereas in the United States mob violence is viewed as distant history or associated with popular films or television shows, for the people of Sicily this was the reality of recent memory, in which the brutal mafia wars blurred the lines between gangland violence and terrorism.

Blessed Rosario Livatino was born on October 3, 1952, in the small town of Canicattì, in the province of Agrigento. In 1975, he completed his law degree in Palermo. On the top of his thesis, he wrote three letters: STD, or Sub Tutela Dei. Thus, from the very beginning of his legal career Blessed Rosario entrusted his work as a lawyer and judge to God.

Over the course of his legal career, Blessed Rosario progressed from prosecutor to magistrate. His colleagues recall his rigorous and inflexible application of the law, while at the same time his ability to recognize the humanity in even the most hardened criminals. He understood that there was great disorganization and corruption in the region resulting in ineffectual and fragmented investigations. Blessed Rosario’s requests for greater coordination among law enforcement resulted in the closure of a local bank considered to be the safe deposit box for the mafia. These efforts resulted in the increase of threats against Blessed Rosario and his family. However, he was not swayed. Strengthened by his Catholic faith, he hungered for justice.

Only days before his thirty-eighth birthday, Blessed Rosario drove alone to the courthouse to begin his day of work, having refused an armed escort. Stidda assassins drove his vehicle off the road and Blessed Rosario was gunned down. In the investigation that followed, the perpetrators testified that they had committed their heinous crime because Blessed Rosario was immune to corruption. The mafiosi mocked Blessed Rosario’s Catholic faith and revealed that they had originally planned to murder him leaving the church where he daily adored the Blessed Sacrament. This was truly a murder in odium fidei. It is therefore not surprising that on the same day as Blessed Rosario’s beatification, the Vatican Dicastery for the Promotion of Integral Human Development announced the establishment of a working group committed to the excommunication of mafia members.

Blessed Rosario did not separate his life as a Catholic from his role as a lawyer or magistrate, though he lived his faith in humility. Every day he could be found at Mass, and in adoration before the Blessed Sacrament. This life of prayer and devotion provided him with the strength that enabled him to resist societal pressures and the temptation of lucrative corruption in order to take action for justice, and to root out the evil poisoning his beloved home. His was not a faith segregated to a private sphere, but rather his animating force, the light of Christ guiding him on the path of justice as a humble servant of the common good.

What follows is a short talk I gave to students and young professionals from the Harvard-area community on the subject of “Catholic Constitutionalism.” It is intended merely a a brief primer and introduction to the issues, not as a comprehensive or theoretically sophisticated treatment. I nonetheless hope it is useful within its limits.

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My talk today will be on Catholic Constitutionalism. (At a certain point, I will deliberately begin referring to this as “Catholic constitutionalism” with a small “c,” for reasons I will explain). One of my central questions will be whether there even is such a thing as Catholic Constitutionalism, to which I will answer: both no and yes. There is a sense in which there isn’t any such thing, and a sense in which there definitely is.

It won’t be a long talk, but it will have several different branches, so let me begin with a brief overview.
First I will say a bit about the Catholic doctrine as to the constitution of the temporal power. By constitution, I will always mean a small-c constitution in the classical sense, that is the total set of fundamental institutional and customary arrangements that structure public authority in a society. These may or may not be embodied in a large-C  “Constitution” in the modern sense, which is a single unitary written document that purports to lay forth the fundamental institutions in a text. In the classical sense, there is very much such a thing as the British constitution, although there is no single British Constitution in the modern sense. That is, the British constitution is often called an unwritten constitution, although a more accurate description is that it is an uncodified constitution. It is composed of a number of fundamental statutes that have constitutional force, like the Act of Union 1707, of foundational constitutional principles (“What the Queen in Parliament enacts is law”), and also of fundamental unwritten normative customs or as the British call them “conventions.” All this was true of the Roman constitution as well.

The Savoyard constitutional theorist Joseph De Maistre went further, in his Essay on the Generative Principle of Constitutions, and argued that there is in a sense no such thing as a written constitution. Constitutions are begotten, not made; grown, not engineered. On this view, although of course there are written things that purport to be constitutions, they at most restate antecedent unwritten law, and are not causally efficacious in structuring the small-c constitution — the actual operating rules and norms of a political order. We need not accept or reject De Maistre‘s argument for present purposes, however.

Secondly, I will turn to the constitution of the Church founded by Our Lord, known in one of its major branches as the Roman Catholic Church. Here I will not speak to the department of theology known as ecclesiology, according to which the Church is the mystical body of Christ. I’ll leave that to others who know far more theology than I do. I will simply offer a few remarks about the Church’s outward-facing fundamental institutional arrangements.

I should clarify another term here. When I refer to “the Church’s institutional arrangements,” I mean the institutional setup of the spiritual power. Properly speaking and more accurately, however, “the Church” encompasses both clergy and laity, both the spiritual and the temporal power. Indeed Catholic theology has always recognized a sphere within which the temporal power has legitimate autonomy to govern according to the virtue of prudence, directed to proper ends. One must not confuse or conflate (although many do) Catholic doctrine with Caesaro-Papism or heirocratic rule, both of which fuse the spiritual and temporal powers in different ways, either fully subjecting the spiritual to the temporal, or the temporal to the spiritual. That is not the Catholic view. The Catholic view is “Duo Sunt,” in the famous words of Pope St. Gelasius—there are two powers that rule, the spiritual and the temporal power, and one of the major issues of political theology is to get them into the right relationship. Here we have the issue of so-called integralism, better known as political Catholicism or simply, as Dignitatis Humanae described it, “the traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ.” I mention this just for purposes of mapping the intellectual landscape, but integralism is not my subject today.

Third and finally, I’ll very briefly address the much-discussed question whether Catholic constitutionalism is compatible with liberalism, appropriately defined.

Continue reading “Catholic Constitutionalism: A Primer” →