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The Freedom of the Church THE LAW SCHOOL THE FREEDOM OF THE CHURCH Richard Garnett Lilly Endowment Associate Professor of Law Notre Dame Law School Legal Studies Research Paper No. 06-12 This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=916336. A complete list of Research Papers in this Series can be found at: http://www.nd.edu/~ndlaw/faculty/ssrn.html THE FREEDOM OF THE CHURCH Richard W. Garnett* I. Not many today know much about an 11th century monk named Hildebrand, who eventually reigned as Pope Gregory VII? However, the three days in late January 1077 when the excommunicated German king, Henry IV, stood barefoot in the snow doing penance outside the castle at Canossa of Countess Matilda of Tuscany could be as important to the development of western constitutionalism as the later events at Runnymede, or Philadelphia.1 Hildebrand not only orchestrated the first great “propaganda” campaign in history in support of his struggle with secular powers for papal control over the Church;2 he led a “revolution” that, as the great legal scholar Harold Berman reports, worked nothing less than a “total transformation” of law, state, and society.3 And, the battle cry for this papal revolution – an idea that would serve as the catalyst for “the first major turning point in European history”4 and as the foundation for nearly a millennium of political theory – was libertas ecclesiae, the “freedom of the Church.” Drawing on the work of Fr. John Courtney Murray, this Article explores the possibility that this idea – or something like it – remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. For Hildebrand and his allies, the “freedom of the Church” was the “freedom of the clergy, under the pope, from emperor, kings, and feudal lords.”5 It was the “assertion of papal primacy over the entire Western church and of the independence of the Church from secular control.”6 This revolutionary slogan was, in Murray’s words, a “pregnant phrase,” one that refers both to the “freedom of the Church as a spiritual authority” to * Lilly Endowment Associate Professor of Law, University of Notre Dame. I am grateful to Bob Rodes, Mark Sargent, Angela Carmella, Rob Vischer, Ed Hartnett, Greg Sisk, Nicole Stelle Garnett, Carl Esbeck, Steve Smith, Mark Tushnet, and all of the participants in the Constitutional Theory Colloquium at the Georgetown University Law Center and in the workshop series at Seton Hall University School of Law for their suggestions and criticisms. 1 See generally, e.g., BRIAN TIERNEY, THE CRISIS OF CHURCH AND STATE: 1050-1300 (1988); HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983); Robert Louis Wilken, Gregory VII and the Politics of the Spirit, in THE SECOND ONE THOUSAND YEARS: TEN PEOPLE WHO DEFINED A MILLENNIUM (RICHARD J. NEUHAUS, ed., 2001). 2 BERMAN, supra note 1, at 94 (quoting,Introduction to G. TELLENBACH, CHURCH, STATE, AND CHRISTIAN SOCIETY AT THE TIME OF THE INVESTITURE CONTEST xiv-xv (R.F. Bennett trans., 1940)). 3 BERMAN, supra note 1, at 23. See also JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT: ESSENTIAL RIGHTS AND LIBERTIES 11-14 (2000) (discussing the “papal revolution”). 4 BERMAN, supra note 1, at 87. 5 BERMAN, supra note 1, at 94. 6 BERMAN, supra note 1, at 50. See also WITTE, supra note 3, at 11-12 (noting Pope Gregory VII’s claim that “[o]nly the pope . had authority to ordain, discipline, depose, and reinstate bishops, to convoke and control church councils, and to establish and administer abbeys and bishroprics.”). 2 Freedom of the Church [10-Jul-06 carry out its “divine commission . to teach, to rule, and to sanctify” and to the freedom of the Christian people “to live within her fold an integral supernatural life,” a life with an “inherent suprapolitical dignity” that transcends the goals and powers of the state and its temporal ends.7 What was at stake at Canossa, then – as at the Cathedral in Canterbury a century later, when the “meddlesome priest” St. Thomas Becket was murdered by another ambitious King Henry8 – was the “principle that royal jurisdiction was not unlimited . and that it was not for the secular authority alone to decide where its boundaries should be fixed.”9 In George Weigel’s words: Thanks to the Freedom of the Church, and to the resolution of the investiture controversy in favor of the Church, the state . would not be all in all. The state would not occupy every inch of social space. Indeed, the state had to acknowledge that there were some things it couldn’t do because it was simply incompetent to do them – and that acknowledgment of limited competence created the social and cultural conditions for the possibility of what a later generation of constitutions and democrats called the limited state. The Western ideal – a limited state in a free society – was made possible in no small part by the investiture crisis.”10 What resulted from this “disengagement of the two spheres of sacred and profane” was not only a change in the “self-understanding”11 of both Church and state but also, as Peter Brown wrote, a “release of energy and creativity analogous to a process of nuclear fission.”12 And yet, no Justice of the United States Supreme Court has ever mentioned – at least, not according to Westlaw – Hildebrand, Gregory VII, or Canossa in any published opinion. Nevertheless, and following Berman, I suggest that engagement with the 11th century Investiture Crisis, the “Papal Revolution,” and the libertas ecclesiae principle could be helpful, if not essential, to an understanding of constitutionalism generally and, more specifically, of the religious freedom protected 7 JOHN COURTNEY MURRAY, WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION 201, 203-04 (1988). 8 In the Academy Award-winning 1964 film, BECKET, England’s King Henry II – played by Peter O’Toole – says of Thomas Becket, the Archbishop of Canterbury – played by Richard Burton – “will no one rid me of this meddlesome priest?” Id. 9 BERMAN, supra note 1, at 269. 10 GEORGE WEIGEL, THE CUBE AND THE CATHEDRAL: EUROPE, AMERICA, AND POLITICS WITHOUT GOD 101 (2005). 11 Wilken, supra note 1, at 10. The author notes: By desacralizing the authority of the king, Gregory disengaged the spiritual world from political control (at least in theory) and set in motion forces that would alter not only the self- understanding of the Church but also of the state. Deprived of its spiritual authority, the state was forced to conceive of itself anew as a corporate body independent of the Church.” Id. 12 Peter Brown, Society and the Supernatural: A Medieval Change, 104 DAEDALUS 133, 134 (1975). 10-Jul-06] Freedom of the Church 3 by the First Amendment to our Constitution. The American Jesuit and theologian, Fr. John Courtney Murray – who wrote widely and influentially about religious freedom and democracy – appreciated this connection. Today, Murray probably is best known for his work in grounding the freedom of religious conscience from government coercion on the dignity of the human person, an effort that is widely seen as having been endorsed by the Fathers at the Second Vatican Council in their 1965 Declaration on Religious Liberty, Dignitatis humanae.13 And, he is invoked often in discussions and debates regarding the advisability or justifiability of morals legislation in conditions of pluralism and about the responsibilities of, and constraints upon, Catholics in public and political life.14 However, his emphasis on the significance for limited government and religious freedom of the libertas ecclesiae principle seems to have gone largely overlooked. Murray regarded this principle as a “Great Idea,” whose “entrance into history marked the beginning of a new civilizational era.”15 And he proposed that this idea, properly understood, should be treated not only as an aspect, dimension, or implication of religious freedom, but as essential and foundational to it. Put differently, the libertas ecclesiae principle for Murray was not merely a spin-off of his important argument about human dignity as the basis for immunity from coercion in matters of religious conscience; it is the linchpin of that argument.16 After all, Murray insisted, we have long understood that we are not really free if “[our] basic human things are not sacredly immune from profanation by the power of the state[.]”17 The challenge, in his view, 13 See, e.g., Dignitatis humanae ¶ 2 (“The right to religious freedom has its foundation in the very dignity of the human person as it is known through the revealed word of God and by reason itself. [T]he right to religious freedom has its foundation not in the subjective disposition of the person but in his very nature.”). 14 See, e.g., Mario M. Cuomo, Persuade or Coerce? A Response to Kenneth Woodward, COMMONWEAL (Sept. 24, 2004). Gov. Cuomo speaker stated: My speech echoed the teaching of great American theologians like John Courtney Murray who told us it is a ‘foolish position to say all sins ought to be made crimes.’ Murray’s position was consistent with Aquinas’s observation that although civil law is concerned with leading everyone to virtue, it does so prudentially-gradually and not suddenly. Id. See also, e.g., David R. Obey, My Conscience, My Vote, AMERICA (Aug. 16, 2004). Congressman Obey wrote: I remain a John Courtney Murray kind of Catholic, while Archbishop Burke is not. Murray was the key American theologian who advised the American Catholic bishops during the deliberations of the historic Second Vatican Council convened by Pope John XXIII.
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