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.
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.
So, to begin with the first branch of our outline, let me speak of the Catholic doctrine as to the nature and limits of the temporal power. Here I will offer two opposed theses, first that there is no such thing as Catholic Constitutionalism, and second that there is such a thing. I believe that both theses are true, somewhat paradoxically, so long as we draw a distinction that I will explain.
The first thesis is that in a certain sense there is no such thing as a distinctively Catholic constitutionalism. (Note that I have deliberately used a small “c” here). The liberal mind, which is also the modern mind, is tyrannized by the primacy of the pragmatic reason over the speculative reason. For those of you who have attended the seminar on Donoso Cortes held at the Abigail Adams Institute, this is one of his major themes. The liberal mind leaps immediately to institutional forms and demands that certain institutional forms be put beyond the pale. Thus the hallmark of the liberal is insistently to ask “what regime exactly do you favor?” And then to become suspicious that if no answer is forthcoming, the secretly favored institutional arrangement can only be absolutist monarchy, of the most lurid and darkest version — in the liberal imagination, the notorious “Black Legend.” (Think hooded Spanish inquisitors).
From the standpoint of Catholicism however, the question cannot be answered as such because it is badly posed. The Church has never taken a stand on the optimal form of regime, let alone demanded that one particular form of regime be adopted to the exclusion of all others. Catholic constitutionalism respects the intrinsic nature of the fundamental arrangements of whatever particular polity it is addressing, without attempting to impose a single model. Rather the Church’s view is that multiple types of regime, whether republics, constitutional monarchies, or a range of other types are all potentially valid. At the height of his confrontation with the Soviet regime and sometime afterwards, John Paul II said some things, especially in informal tarmac speeches, that might be taken to suggest that modern liberal democracy is the Church’s preferred form of regime. But if you look at his magisterial teachings, they are carefully couched and qualified so as to avoid this final conclusion, or at least to avoid imposing it dogmatically. What they do suggest is that some sort of public participation in government is essential to a well ordered polity, but as I will explain shortly, that stricture is itself entirely compatible with various regime forms.
A confusion that often arises here is that one sometime sees Catholic doctors and theorists discussing the best form of regime. A famous example is St. Thomas Aquinas in De regimine principum or De regno, a treatise on the nature of government written for the king of Cyprus. But insofar as they are discussing that, they are not doing so on the basis of defined Catholic dogma. They are speaking independently as constitutional theorists, who may of course draw upon Catholic sources, quite properly, but are not explicating any binding doctrine of the Church. Aquinas famously urged a regime form that we might call “mixed government with monarchical primacy”—that is, a regime led by a monarch but also incorporating aristocratic forms and indeed substantial elements of popular participation. But nowhere does he claim that that is the only valid or possible form of regime.
Importantly, note that in Aquinas’ scheme popular participation can be built into a government that is not “democratic” in the narrow and currently prevailing sense of holding mass elections by secret ballot. Such a regime may nonetheless be democratic as a whole and in a material sense, given some mix of other features such as popular consultation by rulers through various types of institutions, a norm that official posts are to be open to all according to merit, or a foundational constitutional commitment that sovereignty lies with the people and is then delegated to ruling institutions, however the officials that staff those institutions are selected.
If different forms of regime can be potentially valid, on what exactly does their validity depend? This is the sense in which there is actually a Catholic constitutionalism. What the Church requires of the particular civil arrangements of a jurisdiction—I confine myself as a civil lawyer to the temporal or civil aspects of these demands and leave theology to others—is not that they take some specified institutional form, but that the fundamental arrangements of a particular polity be ordered to the temporal common good. The common good is itself a concept richly worked out over millennia, with elaborate bodies of distinct but compatible theory in both law and theology. The common good is shared but indivisible, one in number and not diminished by being shared. In the temporal order, it is the flourishing of the political community, which is also the highest temporal good for individuals. The tradition then gives more specific content to the common good by elaborating principles of “peace, justice, and abundance,” a famous early modern formulation, and then in Catholic social thought elaborating even further principles of solidarity, subsidiarity, and human dignity, among others. I don’t think we need try to recapitulate all of this tradition here; there are excellent overviews available in many sources.
The basic distinction I have laid out—that different forms of civil order can be valid, so long as they are in the right relationship to the common good—can itself be understood as based on several distinct but compatible principles, one of theology, one of the classical law. The theological principle is that grace perfects and elevates nature. In John Rao’s excellent book Removing The Blindfold, which I recommend to all and sundry, it is explained very clearly how the 19th century Jesuits of La Civilta Cattolica elaborated on the Church’s view towards actually existing constitutional orders in a variety of different polities, some Catholic confessional states, some not. Some of these polities were republics, some monarchies, and so forth. The Church’s view is that all of these natural authorities can be elevated and perfected by grace so long as they are ordered to the right ends. The Church’s aim is emphatically not to remake all constitutional orders on a single pattern—an aim that is a recurring temptation for liberal constitutionalism, which tries to remake every polity in its own image. Rather the Church’s hope is that every natural constitutional order becomes the most perfect version of itself by being ordered to proper ends. America is to become the best version of America; Poland is to become the best version of Poland; and, dare I say it, China is to become the best version of China, not a copy of some other constitutional order.
So much for the theological principle. The classical legal principle is determination, intimately related to the virtue of prudence. Determination can take two forms in positive law, either directly implementing deontological strictures of the natural law such as the absolute prohibition on murder, or giving more specific content to general principles of the natural law that must be made of concrete in the circumstances of a particular polity. The virtue of regnative prudence, the special kind of prudence that is a virtue of rulers, is the judgment about how best to make these general principles concrete. An example, a humble example taken from law, is the basic principle of natural law that any party must be given notice and an opportunity to be heard in response to charges against them. That sounds appealing, but as any civil lawyer knows, there are a thousand different ways to implement and embody that principle in concrete legal rules and institutions, and much of the work of lawyers in certain fields is working out what exactly that sort of principle means.
Determination can occur at the level of the whole constitutional order as well as the level of particular rules. Multiple different institutional arrangements can be compatible with general principles of the natural law and can be ordered to the common good. Therefore the Church as such takes no position on questions such as whether there should be a separation of powers in the American fashion, or whether a unitary system without separation of powers as in a classical Westminster system makes sense; whether judicial review is or is not required, and if so, on what subjects and for what purposes (see the excellent debate between Jamie McGowan and Michael Foran on this point); or whether some entirely different type of structure for protecting and promoting the common good makes sense in local circumstances. All that is left up to the prudence of local constitution-makers.
Given some determination of a particular constitutional order, the resulting debates are debates over the best interpretation of that order, that is, about how to put the order in its best light while respecting its integrity as what it is, rather than making it into something else. How best to do that is a debate, not about Catholic theology or social thought, but within jurisprudence. You may have heard, for example, of the ongoing debate between originalism and common good constitutionalism (for more detail, buy my forthcoming book on this topic!). That is a debate within jurisprudence on which the Church takes no direct dogmatic stance beyond saying that all civil law must, by its nature, be rationally ordered to the common good. The question then becomes whether and how the laws, written or unwritten, of a particular jurisdiction can be interpreted to be consistent with higher sources of law, such as the natural law. Put differently, the ius commune, the western legal tradition composed of a mix of Roman law, canon law, and other sources, has always claimed that the proper mode of interpretation of laws is to read them as consistent with higher sources of law if at all possible. This is not an attempt to substitute morality for law or otherwise to override positive law. It is an account of how law should be interpreted to remain law, that is, an ordinance of reason for the common good promulgated by those who have care of the community, which is the classical definition of law.
So much for Catholic constitutionalism with respect to the temporal power. Second, a very few words about the institutional constitution of the spiritual power—the Church in its narrower sense. Donoso Cortes argues that the Church is a perfect or ideal type of mixed government, combining monarchy in the form of papal authority, aristocracy in the form of the bishops, and a kind of democracy or popular participation in the role of the laity and in the fact that offices in the Church are open to all according to vocation and merit. As Dupanloup observed, the merest shepherd of Abruzzi can become Pope.
I would add to this only a note on bureaucracy as fundamental to the Church’s institutional structure. Carl Schmitt once joked that the Roman Church is a horror to the Anglo-Saxon mind because it combines two features that the Anglo-Saxon cannot tolerate, namely, celibacy and bureaucracy. If you hear someone saying that the administrative state is a recent innovation, for example, an American saying that the administrative state is a product of the Gilded Age or of World War I, or of the New Deal, they are historically profoundly illiterate. The administrative state goes back as least as far as the Roman Republic and the administrative edicts of praetors, and then becomes fully developed under the empire, first in its form as the principate and later in its form as the so-called dominate. The administrative structures of the empire are then taken up by the Roman Church and developed even more elaborately throughout the Middle Ages, and are also developed in somewhat different ways by the Holy Roman Emperors. The medieval state is in important respects a bureaucratic state. And this is true both as to the temporal power and as to the internal constitution of the spiritual power. Recall that before 1870 and the destruction of the Papal States by liberal nationalism and the forces of Italian reunification, the Pope is also a major temporal prince.
Finally, let me turn to the question about the relationship between Catholic constitutionalism and modern liberalism. Here again, the answer to the question whether Catholicism and liberalism are compatible is “yes and no.“ It depends what we mean. If we mean by liberalism a fundamental principle, embodied in constitutional institutions, that the goal of human societies should be to maximize individual autonomy subject only to the constraint of respecting the like liberty of others, that is fundamentally inconsistent with Catholic doctrine. The definition of law, as an ordinance of reason for the common good promulgated by public authority, means that law is a teacher of the virtues. It is not agnostic on the virtues, subject only to a harm constraint. Aquinas for example is very clear that one office of law is, if necessary, to help subjects to break out of malign habits and to instill beneficial habits that can eventually become internalized as virtues.
However, it does not follow that Catholic doctrine calls for maximum oppression or some such. That is just another aspect of the “Black Legend.” What it calls for, so far as civil law is concerned, is that the action of public authorities be ordered to the common good. But the common good may itself build in particular liberties, and the virtue of regnative prudence in rulers may call for restraint in using the powerful engine of legal sanctions. As Aquinas puts it, “human law rightly permits some vices, by not restraining them … Human law is framed for a community of men the majority of whom are not men of perfect virtue. And so human laws do not prohibit all the vices from which virtuous men abstain, but only the more grievous ones, from which it is possible for the greater part of the community to abstain; and especially those which do harm to others, without the prohibition of which human society could not be maintained.” (This is R.W. Dyson’s translation).
What then is the difference between the liberal view and the Catholic view? On the Catholic view, particular liberties are sometimes good for people in flourishing communities. It is usually for the common good, for example, that within reasonable limits a lawyer not be punished for making an unsuccessful argument on behalf of a client, or that an academic not be punished for advocating an unpopular thesis. (You will note both of those liberties are ones that I have every reason to appreciate keenly). Merchants benefit the community, and some liberty of trade is necessary for that benefit to come to fruition, although this is a very different thing than economic liberalism, the ideology of the free market.
In short, particular liberties may well serve the common good, but Liberty itself is not to become an idol. Liberty is a good servant but a bad master. Which particular liberties are necessary to serve the common good is itself just another question of determination, subject to respecting the constraints of the natural law and to the regnative prudence of rulers in giving specific content to general principles of the natural law in local circumstances.
Overall, the genius of the Catholic approach to constitutionalism is that it respects the indwelling nature of particular constitutional orders and does not attempt to impose a single blueprint across the globe, as American law professors have been notorious for attempting to do. Rather it respects the prudence of those who have the care of the community in their charge, including those who formulate constitutional rules. It tries to elevate and perfect nature, making every constitutional order more fully itself by bringing it into the right relationship to the common good. Thank you.
Adrian Vermeule
