Novak (novak) wrote,
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Theological Notebook: Murray on the Bill of Rights

I continued reading this afternoon/evening, over in the Court of the Fountain, in front of Joan of Arc, mostly in John Courtney Murray's We Hold These Truths: Catholic Reflections on the American Proposition, as well as starting to get into Religious Convictions and Political Choice by Kent Greenawalt of the Law School of Columbia University. (I've also been scooting through the slightly more popular The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion by Yale Law professor Stephen L. Carter, but I didn't take that one outside. It's also about ten years old at this point, and much more anecdotal, which is interesting just for the variety of illustrations of different points of how these things are playing out in the culture.) Greenawalt I tripped over as one of the lawyers highly involved in the legal aspects of the secularization of the College of New Rochelle in that school's case study in Burtchaell's The Dying of the Light: The Disengagement of Colleges and Universities from Their Christian Churches when I read that last month. He's quite readable here. But it was Murray who grabbed my attention early this evening while the setting sun lit up the roses around the fountain, and the sound of the water competed with the highway and with the band that was playing for the class reunions taking place today. (They just finally stopped blasting the neighbourhood at midnight, ending on a cover of Paul Simon's "Late In The Evening," which would have been totally cool if their horn section had not been falling apart at this point: someone was either blasted or is strangely tone-deaf for a musician.) What got me especially was this passage dealing with one of his more interesting historical points, which was that the principle components of the American Constitution were not derived from the current thought of the 18th-century's "Enlightenment," but from the inherited thought of the medieval legal heritage of England and the Church:
One characteristic of the American Bill of Rights is important for the subject here, namely, the differences that separate it from the Declaration of the Rights of Man in the France of '89. In considerable part the latter was a parchment-child of the Enlightenment, a top-of-the-brain concoction of a set of men who did not understand that a political community, like man himself, has roots in history and in nature. They believed that a state could be simply a work of art, a sort of absolute beginning, an artifact of which abstract human reason could be the sole artisan. Moreover, their exaggerated individualism had shut them off from a view of the organic nature of the human community; their social atomism would permit no institutions or associations intermediate between the individual and the state.

In contrast, the men who framed the American Bill of Rights understood history and tradition, and they understood nature in the light of both. They too were individualists, but not to the point of ignoring the social nature of man. They did their thinking within the tradition of freedom that was their heritage from England. Its roots were not in the top of anyone's brain but in history. Importantly, its roots were in the medieval notion of the homo liber et legalis, the man whose freedom rests on law, whose law was the age-old custom in which the nature of man expressed itself, and whose lawful freedoms were possessed in association with his fellows. The rights for which the colonists contended against the English Crown were basically the rights of Englishmen. And these were substantially the rights written into the Bill of Rights.

Of freedom of religion there will be question later. For the rest, freedom of speech, assembly, association, and petition for the redress of grievances, security of person, home, and property- these were great historical as well as civil and natural rights. So too was the right to trial by jury, and all the procedural rights implied in the Fifth and later in the Fourteenth Amendment provision for "due process of law." The guarantee of these and other rights was new in that it was written, in that it envisioned these rights with an amplitude, and gave them a priority, that had not been known before in history. But the Bill of Rights was an effective instrument for the delimitation of government authority and social power, not because it was written on paper in 1789 or 1791, but because the rights it proclaims had already been engraved by history on the conscience of a people. The American Bill of Rights is not a piece of eighteenth century rationalist theory; it is far more the product of Christian history. Behind it one can see, not the philosophy of the Enlightenment but the older philosophy that had been the matrix of the common law. The "man" whose rights are guaranteed in the face of law and government is, whether he knows it or not, the Christian man, who had leamed to know his own personal dignity in the school of Christian faith.

I'm also interested to see--and it's certainly convenient for me making quotes from my current reading--that John Courtney Murray's work is all being put online, along with material from Teilhard de Chardin and Ignatius of Loyola at the library of the Woodstock Theological Center at Georgetown University. Certainly Murray's stuff is not in the public domain yet, so it's cool of the Jesuits to have made this choice. The buzz I've heard lately in the academic community is one of a resurgence in regard for his work and its continued challenge, applicability and value. While he's always regarded as the great genius behind Vatican II's declaration on religious freedom--the distinct American contribution to the Second Vatican Council--the rest of his work seemed to have been neglected for a while. I have to say that for myself, I'm beginning to see why he was and is so highly regarded. (And why my dissertation director keeps a framed portrait of him on his otherwise-buried desk.)
Tags: america, books, dqes, ethical, historical, philosophical, political, theological notebook
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