Beyond Americanism and Constitutionalism
Recently, I offered what I think is the Catholic solution to the social and political problems facing our nation. In this piece I argued that we ought to go beyond seeking “salvation” from some self-imagined political messiah or demagogue, because our only salvation is from Christ and His Church. In this same article I described the theme of Catholic Action (Christian Democracy) and offered an outline of some basic Catholic Social principles including a brief overview of the Church’s doctrine regarding the framework of a Christian State, as well as of the social reign of Christ the King. Based on my last article it is important to proceed with an examination of the foundation and nature of the United States in light of Christendom and Catholic social doctrine, including a critique of Americanism as well as Originalism or Strict Constitutionalism.There are many well-meaning individuals who claim that if we only returned to America’s foundation and original intent most of the problems we face today would go away. They also and similarly claim that if we just went back to the original intent of the constitution “what is known as Originalism or Strict-Constitutionalism,” that these problems would likewise be eradicated. Among these individuals we can include many from the Right, social conservatives, strict-constitutionalists, libertarians, and a variety of Protestants and Catholics. They claim that by going back to the “original intent of the Constitution” that the United States would be much better off, and would, as the popularized phrase says, make “America great again.” They furthermore claim that only by such process is it possible to reclaim our Christian roots.Before going further, I think it should first be pointed out that I consider myself a “patriotic American,” meaning that I love this land. Furthermore, I love the American people, culture and heritage of the United States. I love the many opportunities that this nation has provided to me. I also love the many American institutions that make up the United States. This includes the Common Law traditions which to a large extent protect individual rights. I also believe that America has a rightful place in the world with its unique sets of traditions, its own political language and cultural significance. However, based on Christian, and specifically, Catholic social principles, “Americanism” (the belief that the American form of government is not only good or practical but ideal) as well as the belief in “Strict-Constitutionalism” has and will continue to do more harm than good. This particular mentality will make it very hard if not impossible for the Christian State, culture, or nation in general. Naturally, this would also make it difficult to carry out Distributism and live the social doctrine of the Catholic Church.[note]For an in-depth analysis on the negative secular and Enlightenment principles of the United States and of “Americanism” I recommend reading Christopher Ferrara’s book Liberty the god that Failed and Ryan Grant’s two part review which can be found here and here. Suffice it to say that the “American experiment of liberty” greatly falls short of authentic Catholic social principles.[/note]Much can be said about the Christian framework of the United States. Some prominent writers have argued, for example, that many aspects of the Declaration of Independence have been to a large extent influenced by many of the Catholic principles of government as held by individuals such as Saint Robert Bellarmine and Saint Thomas Aquinas. This is pointed out by Rev. John C. Rager in his article Catholic Sources and the Declaration of Independence. This includes, for example, the function of government, its system of checks and balances, and the principle of subsidiarity. On the other hand, it has also been pointed out that the United States was also largely founded on secular and Enlightenment ideals influenced by the Deism and Masonic beliefs of most of the Founding Fathers (although there were also many practicing Protestants). The Lockean belief in civil government arising from the “consent of the governed” in contrast to the belief that all civil authority originates in God as taught by Scripture and Tradition. Ryan Grant points out that this belief “deconstructed and rejected” the Ancient Greek and Catholic metaphysical and epistemological tradition in favor of the “Enlightenment’s radical doubt.”[note]Ryan Grant, “Liberty the God that Failed Part I,” The Distributist Review (December 19, 2012).[/note] On a more problematic level, this also includes the Constitutional prohibition of allowing the State to explicitly grant Christianity full liberality and sole profession. Lastly, and more troubling, what the U.S. Constitution may allow in terms of morality in either a real or imagined way, such as a so-called “right to abortion” or to same-sex “marriage,” given the Supremacy Clause which states that the Constitution is the Supreme Law of the land.One only has to look at the Treaty of Tripoli to show that the Founding Fathers had no intent whatsoever in erecting a confessional Christian nation. The Treaty of Tripoli’s chief concern was the protection of American commercial trade at the hands of Muslim pirates in the Berber region of North Africa. A disturbing aspect of the treaty is given in the eleventh article which reads:
As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims); and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.[note]The Barbary Treaties 1786-1816, Treaty of Peace and Friendship, signed at Tripoli on November 4, 1796.[/note]
It is no wonder why the belief in Originalism (Strict Constitutionalism) and hence the Supremacy Clause is concerning. Based on Christian standards the Constitution is a fallible as well as flawed and imperfect document. This does not mean that everything or most of what is in the Constitution is bad, but that it is definitely wanting. We have already seen the problems it poses for the American State wishing to be an exclusively Catholic one with regards to the Establishment Clause of the first amendment, or because the U.S. Constitution is one of the first constitutions to explicitly omit any mention of God or Christ. But it is also true with respect to the moral liberalism of the Constitution.Gary Potter, founder of Triumph magazine, notes that this problematic aspect has been shown and carried out even by devout Catholic judges such as the late Antonin Scalia (“Antonin Scalia viewed as a liberal”.) According to Potter, Supreme Court Justice Antonin Scalia was a man who loved his faith and was a man of virtue, but his Originalism and Strict Constitutionalism limited him from truly acting in the best interest of Catholic morality:
He often said that the Constitution doesn’t provide a right for a woman to have an abortion, but it also does not forbid States from making the procedure legal and acceptable. That is to say in his legal thinking even if it was not his religious conviction, abortion was on par with smoking. If the people of California and New York want to ban public smoking and have legal abortion, but Texas would have one and not the other, that’s the way it should be.[note]Gary Potter, “Antonin Scalia Viewed as a Liberal,” www.catholicism.org (April 1, 2016).[/note]
Gary Potter also noted that despite Supreme Court Justice Antonin Scalia’s drastic differences in jurisprudence from Supreme Court Justice Ruth Bader Ginsburg, the fact remains that both had something fundamental in common:
They differed only on how the U.S. Constitution should be interpreted. He was an ‘originalist’ who thought the document should be interpreted as its words were meant by the men who wrote them. She sees it as a ‘living document’ to be interpreted in the light of changing circumstances and mores. The point is they both believed in the U.S. Constitution as the template according to which life in American society should be shaped.[note]Ibid.[/note]
When, in the history of Christendom, has a legal document of any nation been hoisted as the absolute “Supreme Law of the land,” especially, to resolve moral issues? Constitutions were binding and had legal power but they were never the highest authority. Rather the Church was the highest authority. This included accepting Holy Writ (Scripture) as a guide for civil governance. The English Magna Carta, for example, was written at a time when Christendom was the norm and when the authority, rights and freedom of the Catholic Church were accepted, even if not always respected by the Crown or the civil government. Nevertheless, the Church had vast influence over society, articulating sound principles of civil government as well as right morality. Part constitution, the Magna Carta was above all a reactionary document with its main intent to restore the rule of law and tradition, including rights and privileges King John of England had previously abused. Before addressing any of it, however, the charter begins by acknowledging God and the rights of the Church:
First, that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it—and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.[note]Magna Carta.[/note]
This shows that in the age of Christendom, before the Protestant Revolt (and the Age of the Enlightenment), civil government acknowledged the authority of the Church in regards to public matters. No national constitution was in of itself the sole authority. Rather such constitutional authority only existed in connection with the authority as well as rights and freedom of the Church, not separate from them.As Michael Davies once wrote:
By what right can a Catholic policeman arrest those who try to rescue the unborn from abortion? By what right can a Catholic district attorney prosecute them? By what right can a Catholic judge convict them? Let such public officials not protest that they have sworn to uphold the law, because any human law contrary to the eternal law cannot be considered valid by any Catholic.[note] Michael Davies, The Reign of Christ the King, pp. 20-21.[/note]
If we are truly to create a Christian nation founded upon Catholic social principles in their entirely then we have to take into account the history, nature and present of the nation we have inherited. This includes taking into account the good, the bad, and the ugly. We have to find better solutions that go beyond Americanism and Strict Constitutionalism at least with respect to the present form of the Constitution. It is only then that we can create a Christian nation and one which we can truly call great.
