The Catholic Foundations Of The Establishment Clause

Joel Alicea (00:00:04):
Thank you all for coming. Welcome to this event on the Catholic Foundations of the Establishment Clause. We have a very distinguished group of scholars to discuss this topic today, and they will be moderated by a distinguished jurist, Judge Kyle Duncan, who has served on the U.S. Court of Appeals for the Fifth Circuit since 2018 and has been kind enough to do events for us more than once this year. So I’ll turn it over to him in a second. But before I do so, let me just introduce myself. I’m Joel Alicea. Say I’m an assistant professor of law here at the Catholic University of America’s Columbus School of Law and the Co-director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition.

This is one of our kind of semi-monthly events, one off campus, one on campus. So we’ll have another event next week at the Brookings Institution on the state of liberalism, and we’d welcome any of you to attend that event as well. Before we get started, we will begin as we always do, in the name of the Father and of the Son of the Holy Spirit. Amen. Hail Mary, full of grace, the Lord is with thee. Blessed art thou among women and blessed is the fruit of thy womb, Jesus. Holy Mary, Mother of God, pray for us sinners now and at hour of our death. Amen. In the name of the Father and of the Son and of the Holy Spirit. Amen. Judge Duncan, thank you.

Kyle Duncan (00:01:27):
Thank you, Professor Alicea. It’s a pleasure to be with you again. I will have a minimal role here, but I did want to start out by introducing Professor Breidenbach and Professor Bradley. I’ll start with Professor Breidenbach, who I greet on the television. One day I know we’ll meet in person, but it’s nice to see you virtually. Professor Michael Breidenbach is a historian of American politics, religion, law, and culture. He is a visiting professor of humanities at the Hamilton Center at the University of Florida. He’s also associate professor of history at Ave Maria University and Senior Affiliate for Legal Humanities at the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. He’s the author of the book we’re discussing today, Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America, which was published in 2021. He’s also the Co-editor of the Cambridge Companion to the First Amendment and Religious Liberty.

He was elected Fellow of the Royal Historical Society in 2022, obtained his PhD in History from King’s College Cambridge. He lives in southwest Florida with his wife Janice Chik Breidenbach, an associate professor of philosophy at Ave Maria and their son. To my left, Professor Gerard Bradley, professor of law at the University of Notre Dame where he teaches legal ethics and constitutional law. He directs with John Finnis, the Natural Law Institute and co-edits the American Journal of Jurisprudence. He was educated at Cornell, and since he told me that this bio, which I downloaded from the internet is out of date, I will stop there. But I’ve known Professor Bradley for a long time and it’s a pleasure to be with him. I will turn it over, I believe, first to Professor Breidenbach and then Professor Bradley will follow and then I will try to facilitate a discussion with perhaps questions from the audience. Professor Breidenbach.

Michael Breidenbach (00:03:25):
Very good, thank you very much, Judge, for that introduction. Can you all hear me in the audience? Excellent, thank you. I was greatly looking forward to walking again on the steps and halls of the Catholic University of America. The Federal Aviation Administration had other plans for me, so I indulge your patience in this web format, but I look forward to our discussion today. So again, thank you, Judge, for the introduction and thank you, Gerry, in advance for your comments, and finally to Joel for this kind invitation and to Matthew and all those at the project who made this event possible. It’s really an honor to be part of this distinguished speaker series in this new program that is a really exciting new initiative in originalism and in the American Catholic tradition.

So let me begin, as the stories often do, with a date, April 6, 1789. Now April 6th is remembered, if it’s remembered at all, as the first time that Congress, the new first federal Congress, met for the first joint session of the House and the Senate for the confirmation of the election of George Washington as President. So certainly, a monumental event in itself. But that was also the day for a quieter, but still an important event in the history of American church-state relations. On that day, Daniel Carroll of Maryland entered Congress for the first time. And I say it’s a momentous event, because Carroll was a Catholic and he now held a political office whose equivalent position, in the House of Commons in Britain, had been denied to Catholics since the 16th century.

So Carroll’s presence in this new Congress, I think signaled two remarkable transformations. First, the American Constitutional Order was now more accessible to Catholics. Indeed, so much so that a Catholic could be a congressman. The second transformation is that Catholics like Daniel Carroll were now more supportive of a juridical separation of church and state and supported the value of religious liberty. Now, the first transformation, I think, depended on the second. In other words, the reasons American Catholics gave in support of church-state separation and religious liberty persuaded American leaders that Catholics could enjoy civil and religious liberties.

So much of my book Our Dear-Bought Liberty is an investigation of American Catholics’ justification for that transformation in Catholic political thought of church-state separation and religious liberty. The short answer is that they drew on a tradition that had been in the Catholic Church called conciliarism. Now a conciliarism is a medieval ecclesiology or a theory of how the church should be governed and who should govern it and so on. This ecclesiology viewed the Pope as a magistrate, not an absolute monarch, who is elected by the church’s representatives, i.e., the bishops, or the cardinals in this case.

In this view, the Pope is limited in his spiritual jurisdiction by the authority of other bishops and is susceptible to doctrinal error. Under this doctrine, the Pope could be reprimanded or even deposed by his fellow bishops, and he was not considered infallible by himself. Now, by the early modern period, if I could simplify perhaps a bit too much, but in the American or Anglo-American context, conciliarism could be boiled down to two main denials about papal authority.

There are many strands of conciliarism, but in the Anglo-American context, it can basically boil down to two main denials. First, early American Catholics denied that the Pope’s spiritual and moral teachings can be infallible. Second, they denied that the Pope can intervene in the temporal affairs of other countries like the United States. Now, John Locke, the famous English philosopher, had argued that Catholics are required to pledge allegiance, ultimate allegiance, to the Pope. This is a position he charged that led to a dangerous aversion of sovereignty that cannot be tolerated. That’s his Letter Concerning Toleration.

What is not well known is that many American Catholics agreed with Locke on this point, not that they can’t be tolerated, but that they denied that the Pope had such power over civil affairs. In short, Catholics became American by declaring independence from the Pope. They presented a Catholic tradition that advocated temporal independence from not just King George III, but also, the Pope in Rome. They also advocated tradition for juridical separation church and state. Now, the Catholics who upheld this tradition were not minor figures. They were some of the most important Catholics in early America.

From the Founders of Maryland, George and Cecil Calvert, the first and second Lords of Baltimore, to Framers of the Constitution and its Amendments, Daniel Carroll and Charles Carroll of Carrollton, and, of course, the first Catholic bishop, John Carroll. Today, their stance seems scandalous perhaps to Catholics. After all, the First Vatican Council declared papal infallibility, though one of the denials that these early American conciliators had, to be dogma. Therefore, by the 19th century, conciliarism was consigned to the attitude of heresy. But declaring themselves anti-papalist Catholics, these reformers had understood their position to express the true faith, uncorrupted by the crusty medieval papal pretensions that had accumulated.

So American Founders had little reason to exclude Catholics from religious and civil liberties and privileges in the United States, because as Bishop Carroll noted in 1790 in his report to Rome, the American Founders were quote “Perfectly acquainted with the maxims of Catholics.” So that’s the second transformation, from a Catholicism that was to use that fraught contemporary term integralist, to a Catholicism that denied politically dangerous doctrines of papal authority, or as Protestants had conceived of it. So it was this first transformation… Sorry, the second transformation that provided the conditions for the first. A constitutional order, amenable to Catholic claims, to having full religious and civil rights. Now, I just note parenthetically here that the renewed interest in integralism and how it might challenge this Catholic legal settlement that I’ve identified in American founding, that might be a topic for a Q&A.

Now the First Amendment is perhaps the most obvious law to show this first transformation of the American constitutional order being more amenable to Catholics than in previous centuries in England. Congress simply cannot pass a law that prohibits the free exercise of religion, including Catholicism. Now, that’s a remarkable shift from centuries of law that saw Catholics as dangerous until proven loyal, that enacted strict penalties for religious non-conformity to the Church of England, and that effectively made Catholics outlaws in their own country. Now today, I’ve been asked to talk about the Establishment Clause in particular, and I assume Joel means the Establishment Clause of the First Amendment. But I’d also like to suggest that there was an earlier Establishment Clause, if I can use that term, in the Constitution, and that is the No Religious Test Clause in the Article VI of the US Constitution.

Now, the reason that I think Article VI contains the first Establishment Clause is because in Britain and its colonies, the clearest manifestation, and Gerry Bradley has written about this, in his case, Western Law Review article, very well… The clearest manifestation of state sovereignty over religion were religious test oaths, the legal requirements to swear that one would either support or reject a particular religion or set of religious doctrines. So by codifying a ban on religious tests for public officeholders under the United States, the Framers of the US Constitution deliberately rejected the most historically common element of an established church. A church establishment might include tithe requirements, mandatory church attendance, state-funded ministers, or many other elements that have been brilliantly articulated in a volume co-edited by Jonathan Den Hartog.

But all those things can be included as elements of church establishment. But no church establishment had ever prohibited a religious test for public office. It had been an essential element of church establishments and the Framers have rejected it. Now, what does this do with the other part of my task, right, about Catholicism? I’m not suggesting that there were Catholic foundations to the No Religious Test Clause. Historians usually don’t like the term foundations because it sounds very settled to us. We like to think in terms of causes, yes, but more so circumstances or contexts or other C words. But I do think there were three important Catholic contexts here that I want to mention before we get to the real Establishment Clause in the First Amendment. So the first point to note on Article VI is that in Britain and its colonies, religious tests were often directed at Catholics explicitly. Indeed, the opposition in state-ratified conventions to the federal religious test ban often had to decidedly anti-Catholic hue.

So if Catholics had not persuaded the Framers that their religion was compatible with civil allegiance, a religious test of some kind might have been implemented to exclude them. In other words, it’s a counterfactual, but I don’t think the No Religious Test Clause is the product of Framers simply making a juridical determination that the federal government does not have, say, cognizance of a religion or however formulation you want to put it, because you could argue that the federal government does not have cognizance of a religion, but still insist that Catholics cannot hold public office. Why? Because of their punitively political claims about sovereignty that papal authority is ultimately over civil authority. I mean this, after all, is the justification of English laws against Catholics holding public office up through the 19th century, even in the 16th century… Or excuse me, the 17th century, you have kings and their advisors arguing that these oaths of allegiance and so on are not religious tests, right?

Because these are about political matters. So they make this very stark contrast between religious matters and civil matters. So they see oaths that condemn papal authority as political oaths, not religious ones. Catholics, and especially the Pope, see otherwise. So anyway, that was the justification, and I can see how you could have a No Religious Test Clause, but still require, as New York did or many other states, certain oaths that, say, condemn ecclesiastical allegiances, which would be sort of code for against Catholics. So in addition to the juridical determinations that the federal government does not have cognizance of a religion, you also need assurance that Catholics did not hold uncivil beliefs.

So at the second point that I want to make here on Article VI is that American Catholics were all too familiar with this anti-Catholic religious test history, and they made arguments on the ground, in realtime against religious tests, at the state and federal levels, at critical moments in the constitutional debates. And here I want to highlight John Carroll, who was the ecclesiastical superior at the time. Just two days after the convention debate on religious tests in Philadelphia, John Carroll wrote in a Philadelphia magazine criticizing religious tests when the convention was sitting. And then in June 1789, John Carroll published another letter, also pseudonymously this time in the wildly read New York Gazette of the United States, the most influential Federalist paper in the Union at the time, right before North Carolina’s second ratifying convention. Now, I’m not suggesting that Bishop Carroll’s letter caused the vote to, in the first instance, frame and then, in the second instance, ratify the Constitution, including the No Religious Test Clause.

But I think at the very minimum, this context shows that Catholics played an active public role in supporting it. And given the anti-Catholic history of these religious tests, I think that’s quite significant. Finally, I think the simplest explanation for why there’s no religious test for public office, what I’m calling the first Establishment Clause, the simplest explanation is that there were already federal office holders who had held various faiths, including Catholicism. So Catholics Daniel Carroll and Thomas Fitzsimons of Pennsylvania were already in the Constitutional Convention. So this state of affairs ensured that a religious test for federal office would contradict current practice, if not standing principle. And at the very least, such a test would’ve required the embarrassing recusal of two elected delegates to that convention. And I think more importantly, it would’ve contradicted the will of the states that it elected these Catholics to be their delegates, and therefore could be seen as a breach of the principle of federalism.

So let me now turn to the focal sense of Establishment Clause, the First Amendment, and look at its Catholic contexts and influences. Now, I think if Federalists Madison, Daniel Carroll, Charles Carroll had their way, there wouldn’t have been First Amendment because they believe the Constitution respected the sovereignty of states to decide matters of religion. So they didn’t think that constitutional amendments concerning religious liberty were needed. We know that James Madison had lots of hesitations before he proposed his amendments, and in the archives, the Carrolls, Charles Carroll, also thought it was not strictly speaking needed for federalist reasons.

Now, after Madison proposed his first draft of what would become the First Amendment, Daniel Carroll was the only congressman to support the measure explicitly and without further changes. And his speeches recorded on August 15th in a congressional register by the journalist Thomas Lloyd, and Lloyd reported Carol’s remarks in this way. I’m quoting, “As the rights of conscience are in their nature of peculiar delicacy and will bear the gentlest touch of the governmental hand, and as many sects have concurred in opinion that they are not well-secured under the present Constitution. He said he was in much favor of adapting the words, the words of Madison, as originally proposed on the religion clauses. He thought it would tend more toward conciliating the minds of the people to the government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology. His object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.” Unquote.

Now, in Lloyd’s hands, Caroll’s remarks I think were elevated to a kind of oratory, compared with the statements by other congressmen. Lloyd had recorded in shorthand that he had learned in France pretty perfunctory remarks by the congressman. As quoted, Daniel Carroll’s remarks come as a kind of speech, right? Almost word for word, at least he could be read that way. And I think this gives us a clue about Thomas Lloyd himself. Because you see, it turns out that Lloyd was Catholic. And so almost all of what we know about these congressional debates on the Bill of Rights, including the First Amendment of course, comes from a Catholic.

Lloyd had learned shorthand while he was being educated by the Jesuits in their recusant situation in France. John Carroll had even taught Lloyd in that Jesuit College. And now in Congress, two Catholics helped to pass the First Amendment while another wrote what we might call its first history. And I think this should be of interest to originalists and those interested in the Catholic intellectual tradition, that is a Catholic wrote the main document that… Or at least original-intent originalists, used to determine the original meaning of the First Amendment, and he privileged the Catholic congressman’s unequivocal support for it.

Now, Carroll had already been working with Madison to reconcile anti-Federalists to the Constitution. I can trace this through many letters that they wrote to each other, documents that passed between them on the question of revising the Articles of Confederation. And then after the Constitution had been framed and gained anti-Federalists support for it. And when you paired that fact with Lloyd’s record, I think that suggests that the introduction of the First Amendment was a coordinated effort between James Madison and Daniel Carroll, not the singular effort of Madison. So if we want to call Madison the Father of the Constitution, we might also consider Daniel Carroll as the First Amendment’s godfather. I think it’s also interesting to note that Daniel Carroll had spoken in favor of the amendment on Saturday, August 15th, which is an important feast, actually, in the Catholic Church, which was also the first day of debate of the House. So he spoke on a Saturday, and then the discussion resumed on a Monday, which means that Congress, as it’s debating the Establishment Clause, recognized, implicitly, the Christian symbol.

Now several weeks had passed before the House and the Senate agreed on the final text, and fortunately Lloyd and others who were recording the debates did not note that Congress’s reasons for adopting the final language or why other proposals fell of a favor. But what we do know is that another Catholic, Charles Carroll, was one of the members of the committee that finalized the text. Now, a breathtaking volume of scholarship is sought to explain what the Framers meant by the religion clauses of the First Amendment. And the Establishment Clause in particular has been particularly fraught with controversy. As Don Drakeman, who will be speaking in your speaker series next month, has persuasively argued, the most minimal reading of its original meaning, and he comes from a kind of Framer’s intent school of thought, based on the available evidence of the Framer’s collective intention, is that Congress should not establish a Church of the United States akin to the Church of England.

Well, let’s assume that’s correct as a methodological reading of the Establishment Clause. Even if we assume that reading’s correct, the problem remains that there was a disagreement about what was essential about the Church of England, and a fortiori, the hypothetical Church of the United States. For instance, Anglicans, especially in American counties, disputed whether bishops were even a necessary feature of the Church of England, whether paying ministerial salaries, religious tests for public office, state ownership of church land, and so on, were necessary for the Church of England as an establishment. So if that Establishment Clause meant no Church of the United States, I would submit there’s no unanimous agreement, recorded at least, about what that meant. So to understand what the Establishment Clause prohibited, I suggest that we need to turn to Congress’s actual policy decisions before the First Amendment was passed. And the most significant choice that Congress made on matters of church establishment, and one that if anything indicates a collective will on Congress’s part it would be this, came in 1783.

It was then that the Holy See had requested that Congress permit the establishment of a native Catholic vicar, apostolic bishop in the United States. It’s a mouthful, but effectively the ecclesiastical superior for the United States, for Catholics. Now Congress replied, after being shuttled between Benjamin Franklin and the papal nuncio, and in its reply, I think Congress laid down its first, let’s call it principle, of church-state relations, that Congress had no jurisdiction, power or authority, en quote, “Purely spiritual,” unquote, matters, such as electing a Catholic ecclesiastical leader. Now, the committee members responsible for the statement held divergent religious commitments. One included Thomas Jefferson, others were faithful Christians, but they could all agree on that same distinction between temporal and quote “purely spiritual” matters that American Catholics had offered as well. So Congress concluded that these powers in purely spiritual matters were in a nod to federalism quote, “Reserved to the several states individually,” unquote.

So this is Congress, I think, rejecting what European governments had traditionally exercised, the rights of patronage over churches, or in Latin, ius patronatus. Throughout the centuries in Christian Europe, ius patronatus constituted an established church. But Congress’s 1783 declaration was the first in British North America to reject a national government’s right to nominate or prove a cleric for bishopric. And I think Congress’s refusal was knowing one. In William Blackstone, there’s lots of discussion about the rights of patronage. Similar discussion appears in the widely-circulated Encyclopedia Britannica, which had subscribers of many of the American Founders, I think it’s a fairly obvious legal principle that many of them would’ve been familiar with. While this reading of the Establishment Clause might seem too narrow, i.e. at least what it means is that Congress has no right to approve or appoint an ecclesiastical superior. I think it actually provides greater specificity to its meaning.

Prohibiting the establishment of a Church of the United States did not necessarily forbid Congress from nominating or accepting bishops in the United States. You could have government control over bishops, not only establishments, but also non-establishments. I mean, I’m taking a contemporary example, but I think the People’s Republic of China is a good example. They think they have the right not only to approve, but also to appoint Catholic that shape, even though they’re officially atheistic. So governments with established churches even intervened in the affairs of bishops from other churches. Britain did this routinely in Catholic, formerly French or Spanish colonies like Minorca, Majorca or Gibraltar, they would take the Catholic bishop there and say, we need to approve this person, even though it wasn’t a Catholic-established church.

So the United States charted a different path, and basically the way I see the Establishment Clause, if I’m sort of constructing the text, as Keith Whittington suggests we sometimes need to do in the absence of available evidence, I think the First Amendment basically confirmed the policy that the Annapolis-based Congress had stated to the Holy See. In other words, the federal government does not have cognizance over any ecclesiastical affairs and thereby has no right to nominate or confirm a bishop because that’s a purely spiritual matter.

Now, viewing the first Amendment in light of this American Catholic history, I think reveals several new insights into its jurisprudence. Although anti-Catholic movements in the 19th century, like the Know Nothing party, nativism controversies and so on, had interpreted Catholicism as hostile to the First Amendment. And Philip Hamburger articulated this very well when he spoke of separation of church and state. Despite these anti-Catholic movements that interpret Catholicism as hostile to the First Amendment, early American Catholics actually supported the First Amendment and, in fact, helped to finalize its text. And also locating the First Amendment within the context of the US relationship with the Holy See indicates that the Framers of the Constitution denied Congress the rights of patronage that traditionally had defined an established church.

Congress’s patronage took a different form, like protecting religious organizations for them to fulfill their religious obligations, as Thomas Jefferson wrote to nuns in New Orleans after their Louisiana territory. So while the American Founders insisted on bishops without temporal power and the national government without ecclesiastical power, no interpretation can accurately claim that the Establishment Clause amounted to a strict separation of church and state and a naked public square. And I think we have, in part, Catholics to thank for that. So thanks very much for coming and listening and look forward to the comments that ensue.

Kyle Duncan (00:30:51):
Thank you, professor. Well, I’ll just say as an aside, I certainly enjoyed your book immensely. I’m no scholar in this area, but once upon a time I tried to be a law professor who wrote about these things, and so I had to read a great deal of this literature and this was interesting and illuminating and extremely well done. Now we will hear from a scholar in this area. Professor Bradley, you may take it away.

Gerard Bradley (00:31:13):
Well, despite his impertinence just now, I want to say that Kyle Duncan was for many years in private practice of law. During that time he was in season and out of season a courageous and effective advocate and defender of American civil liberty, especially, but not only religious liberty. And I’m pleased to say that during his several years, five years or so, on the federal bench, he has stayed that course. So I’m proud to be part of this, personally because of Kyle being here. And I want to thank the law school, Dean Payne is here, and especially those proprietors, I guess they are, of the new program on originalism and Catholic social thought, Kevin and Joel Alicea. I can’t help but noting that Joel is also the best- dressed law professor I’ve ever seen.

Kyle Duncan (00:32:02):
You don’t set the bar for that?

Gerard Bradley (00:32:05):
No. And as I was saying, some judges are impertinent. But I did wear a new tie today, along with my Warren Khakis and standard-issue blue blazer, just so Joel wouldn’t be too disappointed in me. I like to begin by confessing, at least my remarks proper, the sin of envy, because here’s a random sampling of key parts of reviews of Michael’s fine book. They just happened to be the first few that popped up in a Google search. “Well-researched and important study” wrote one reviewer. “Groundbreaking narrative,” said a second. “An ambitious and sweeping ecclesiastical political tour,” wrote a third.

Now, the progressive Catholic journalist Michael Sean Winters concluded his review in the National Catholic Reporter with these words quote, “The book is required reading for anyone who wants to delve deeply into the American founding and how it came to achieve the constitutional separation of church and state that has so shaped our culture and society.” Now to that, I say just so. Now I on the other hand specialize in writing books that no one reads. Much, much less, reviews favorably. It’s okay, I’m used to it now. And I never even needed therapy.

Kyle Duncan (00:33:28):
I read one, I read one.

Gerard Bradley (00:33:28):
You didn’t even mention any of the books I’ve written in your pseudo-introduction.

Kyle Duncan (00:33:32):
They’re not in the… They’re not listed.

Gerard Bradley (00:33:34):
Your pretend introduction.

Kyle Duncan (00:33:35):
I remember reading a book on the Establishment Clause by you that I thought was exactly right.

Gerard Bradley (00:33:40):
Now a proper introduction would’ve started I was born on a sunny day in Brooklyn, New York, and… Well, we’ll skip that part. But I’ve discovered that being ignored has certain advantages. You attract far fewer critics that way, and you can still get tenure. Now let’s go to Hillsborough, North Carolina. It is July 30th, 1788. Notable Tar Heels have gathered there to decide about ratifying the proposed federal constitution. One anti-federalist is attacking the Article VI clause banning religious tests for federal office. And Michael Breidenbach spoke about this for a while, just minutes ago. This man, William Lancaster, is speaking frankly about his worry, about the ban on religious tests. This is Lancaster speaking, “In reviewing the qualifications necessary for a president, I did not suppose that the Pope could occupy the president’s chair.” Lancaster continued, “What is most certain that papists may occupy that chair? There is a disqualification, I believe, in every state in the Union. It ought to be so in this new federal system.”

Well, not quite every state in the Union. Catholics were eligible for public office in the states of Pennsylvania, Delaware, and Maryland. But elsewhere in the Union, only Protestants could hold office. Now back at Hillsborough, another man rose to his feet to contend with Lancaster’s worry. This man was destined to be one of the first Supreme Court Justices, a man named James Iredell. And he was a leading defender of the federal Constitution, a proponent of ratification. And here’s what Iredell said in response to Lancaster, “No man but a native or who has resided 14 years in America can be chosen president.” Iredell, who is not Catholic, went on to say, “I know not all the qualifications for Pope, but I believe he must be taken from the College of Cardinals. And probably there are many previous steps necessary before he arrives at that dignity.”

Iredell concluded, “A Native of America must have very singular good fortune, who after residing 14 years in his own country, should go to Europe, enter into Romish orders, obtain the promotion of Cardinal, afterwards that of Pope, and at length be so much in the confidence of his own country as to be elected president.” Iredell added, “It would still be more extraordinary if he should give up his Popedom for our presidency.” Well, I suppose so. And Iredell was prescient. No native-born American has ever become Pope, nor has any native-born American likely to become Pope anytime soon. But papalist fears festered, even prospered. Writes Michael Breidenbach in Our Dear-Bought Liberty, quote, “What made Catholicism so odious to early American Protestants was the Pope’s claim, and Catholics apparent acceptance of it, that he had temporal authority over all civil rulers, including even the right to depose a secular authority.

Well, what would such claimed papal temporal authority looked like? Well, one muscular example that comes to mind easily and probably was on the mind of many of the Framers was the Bull of Pope Pius V, by which he excommunicated Queen Elizabeth in 1570. In that bull, Pope Pius declared that Jesus himself had made him, Pius, the successor of Peter, alone, ruler over all peoples and kingdoms. From what Pius called his supreme justice seat, he declared that Elizabeth was a heretic and excommunicated her. But he was just warming up, there’s more. Rather more boldly, the Pope then declared that all persons who had taken an oath to her were absolved from said oath. And then the line that haunted the dreams of men like William Lancaster. The Pope said, “We command all subjects and peoples that they dare obey her orders, mandates, and laws under pain of excommunication.”

So in short, anybody who continued to treat Elizabeth as a legitimate lawgiver and followed her dictates with that person, himself, herself, would then be excommunicated as well. This is temporal authority over civil rulers. This is the focal point of Michael Breidenbach’s book. In his words, the claim that Catholics’ ultimate allegiance was to the Pope, not to the temporal sovereign. The book argues that Catholics became Americans by denying this part or this papalism. Michael writes, “Catholics became Americans by declaring independence from the Pope.” But note well, Breidenbach’s is not a story about William Lancaster’s nightmare about the Pope becoming president. It’s not about the actuarial reassurances of a James Iredell. And it’s not a story of Dear-Bought Liberty. It’s not a story of American Catholics’ pragmatic acceptance of a Protestant or a neo-Protestant anti-papalism.

Nor does Michael maintain that Catholics more or less wittingly, at the founding or by the founding, had absorbed enough enlightenment political theory to water down and finally dissolve their papalism. Now Dear-Bought Liberty is also not about a crypto-Catholic founding. What’s that? Well, Michael, in the book summons the example of Orestes Brownson, probably the most… Well, the most famous, if not the most important American intellectual of the 19th century, Orestes Brownson. Michael summons him as an exemplar of a crypto-Catholic founding. Brownson wrote, “Our American civilization is Roman and Christian. Our American fathers had, unhappily for them, turned their backs upon their church, but they had been nursed in the bosom of the church’s civilization.” Another example of a crypto-Catholic founding is an article, it’s not famous and deservedly obscure, by a man named Gaillard Hunt, who was a manuscript head at the Library of Congress, but a chronicler and biographer of Madison.

Hunt was an adult convert to Catholicism, and he wrote an article in 1917 in which he argued, not persuasively but at great length, that actually we owe that Jefferson and Mason found the soaring phrases about inalienable rights, which found their way into first the Virginia Declaration of Rights and then into the Declaration of Independence. Hunt said that Jefferson got them from, you guessed it, Cardinal Bellarmine. Well, I don’t think so, but some of what crypto-Catholic founders argue is true enough, but only in a trivial and frankly unimportant way. It’s not surprising to learn that Western European Christians transplanted to America at times sounded like and thought like and acted like, well, Western European Christians, which is to say at a certain level of generality in normative ethics and in political theology, all roads lead back to Rome, and beyond that, to Bethlehem and Jerusalem. And besides that, the evidence for any direct influence of Catholic authors, Bellarmine or anybody else, upon the Founders is very thin indeed.

Now, Breidenbach’s book is also not a continuation or even a variation in any important sense of the word variation of Murray’s project. John Courtney Murray is probably the 20th century’s most formidable proponent of a Catholic natural law founding. But his, Murray’s, was an effort to reconcile our Founders’ ideas about religious liberty with the teaching of the Catholic Church, such as it was before the Second Vatican Council. So it’s a kind of an erratic reconciliation project. Murray did not traffic, thank God, in thinly sourced speculations about the conscious wellsprings of what Madison or Jefferson said. He was trying to find a way of thinking about the founding that could be accepted in good conscience by Catholics circa 1950, 1960. Now for what it’s worth, which may not be much, I don’t think Murray succeeded in that anyway, but that’s a story for a different meeting. Joel can invite me back.

So what is Michael’s target in the book? It’s really a Catholic fifth column. To use a term, well, I don’t know that you young people would use it, but people more my age would use fifth column, which came into vogue, I think, during the forties and fifties and was part of the worry about communist infiltration of our government, state and federal, but especially federal. The idea is that on the ground at the founding or in the fifties, there was a large number of people, ordinary people, who although they went through the motions of affirming allegiance to American institutions and appeared to outward appearances to be sound Americans, actually in truth, rejected our form of government. And when crunch time came, would not support it, and given the right opportunity, would actually oppose it. That’s really the fear at the founding. The Catholics already here. Appearing to be normal and well-behaved Americans, were turned out to be traitors and would follow the lead of the foreign prince.

So that’s the founding. And Michael’s book, I think the singular achievement and the great importance of it is that he demonstrates that there was an indigenous, fully explicated and cogent Catholic anti-papalism. He writes, “Early American Catholics had their own intellectual and religious resources for anti-papalism that predates Protestantism. Catholics and Protestants at the founding found common cause,” he writes, “Because they shared an inheritance, an early modern political thought that had been shaped by the conciliarist tradition.” Again, Michael writes, “Catholicism had its own older version of church-state separation and constitutional theory. It didn’t need to borrow from the Protestants.” But there’s more, more on offer in Breidenbach’s book. He writes further, Michael does, “We must not assume that Catholics in the early republic served merely as a contrast to its Protestant religious and political order.”

Now, I say Protestant anti-Catholicism was indeed a powerful forest in American history before Hillsborough, at Hillsborough and long thereafter. But Catholics were not, are not, have not been just the reformers that is the Protestants piñata. They have been agents too. To understand our constitutional history, it is necessary to understand Catholics and their agency, their actions. Because as Michael writes, “They were proponents of complimentary ideologies about church-state relations and contributors to the development of temporal independence and religious liberty in the United States.” Lastly, a bonus claim. Besides the Catholics were agents and not just hapless victims of Protestant bigotry or stooges who simply didn’t know their own minds and went along with a Protestant direction, and they weren’t just a kind of dreaded other in the Protestant imagination. Michael says they’re agents. Now, he says, “Revisiting Catholics’ roles in the early republic is critical to understanding not only American Catholic history, but also American church-state jurisprudence and constitutional history.

So their agents and their agency, that is what they did, why they did it, how they did it, is essential to understanding American constitutional tradition. Well, how so? Well, Michael’s frying of the fish in this book and doesn’t say too much about that, but I have nothing else to fry. So I’ll give you a few ideas of what it might look like to fill out this claim to deliver on what I’ll call Michael’s IOU, the IOU being you have to understand what Catholics did and why, because they shaped the tradition we have, again, not just as victims or foils. So here are some examples, and they’re not all conducive to the common good. So in short, I’d say going forward, it would be good for Michael’s next book to try to play out or develop this thought, but I think it’s essential to do what he would certainly do.

It has to be well-researched and objective and properly critical of what Catholics did. And in no sense of tribal solidarity, should we pretend otherwise than that Catholics made a fair number of mistakes as they did contribute invaluably and well to the tradition. But just for example, Catholics beginning in the 1840s, harshly criticized the public schools as Protestant, which often enough they were. But these criticisms, especially as the 19th turned into the 20th century, made no place for the truths of natural religion in the public schools. To the bishops, anything that was religious in the public schools that didn’t sound Catholic, was Protestant, and therefore to be opposed, because it was sectarian. Now this is to obscure and to distort what was actually happening in the schools. And also it’ll cloud your judgment about what normatively to try to do with natural religion and schooling.

Catholics contributed in this way to… And contributed mightily, I think, to the main story I think of the 19th century insofar as it affects our constitutional tradition of church and state. I think that main story, the thread of the main story, is the unfolding, layered, different… The progression of different meanings of the term sectarian. I think if you want to follow a Google thread through the 19th century of our constitutional history of church and state, put the word sectarian in and then just read, read, read, read. And you’ll see two things. This is the thread that tells you what’s happening in our tradition, and Catholics are part and parcel of that historical development.

But third, maybe on the brighter side, Catholics have long contributed the far greater share of interest and commitment in the constitutional tradition to the cause of corporate, that is ecclesiastical, liberty, especially once the great awakenings made low church… And did I say low? I mean very low church ecclesiology, the norm among evangelical Protestants and the devolution in church structure among the mainline denominations. Well, that’s a different story, but compliments the low church theology of the sects. So Catholics have maintained a focus on ecclesiastical liberty as part of our tradition of religious liberty. Catholics also maintained a tight hold on sound historical understanding of the Establishment Clause, starting after World War II, when the Supreme Court lost its head in Everson and blamed it all on Madison and Jefferson. And then there’s the elephant in the front room. Certainly, our law of the Establishment Clause as it comes to us since 1947 at Everson is little more than a running normative riff on the Catholic parochial school and its place in our constitutional order. So there you have it, plenty more for our next meeting if Joel’s brave enough to invite us back.

Kyle Duncan (00:51:08):
Thank you, professor.

Gerard Bradley (00:51:11):
Thank you, judge.

Kyle Duncan (00:51:12):
What should we do? Do we have some time for questions? As you think about questions, professor, I just wanted to point out two things that occurred to me as I was reading the book. The first overarching question was, I’m a Catholic convert, and I was thinking to myself, well, if I were a Catholic at the time of the founding or before, would I have had to ask myself, can I be a good Catholic and a good American? And if I believed in papal infallibility even in some sense, does that mean that I couldn’t be part of the American founding or certainly couldn’t contribute to it? I mean, so you point out at the end of the book that Vatican I made papal infallibility, within a certain limited sphere, a dogma of the church. How does that change the calculus of Catholics in their place in American life?

And the second thing that occurred to me was it seems I was much more comfortable with the idea that the Pope could not interfere in temporal affairs because that’s so alien to my way of thinking, to a modern way of thinking. But these days, now we have so many Catholics in public life. We have a majority of the Supreme Court is Catholic, we have a Catholic president, we just had a Catholic Speaker of the House. I hear Catholics sometimes asking for bishops to excommunicate Catholic politicians who manifestly and obstinately disregard the teachings of the church. And if you think I’m talking about abortion, I’m not. I’m from Louisiana. And decades and decades ago, we had a Catholic archbishop of New Orleans kick out some Catholic politicians because they were persisting in their segregationist tendencies. Would that count as intervention in temporal affairs from the point of view of conciliarism? I don’t know. But those were the things that were occurring to me as I read your book, which I thought was wonderful and very stimulating.

Michael Breidenbach (00:53:08):
Those are great questions, judge. No, let me in the first instance, thank Gerry for those really all far too kind words about the book and especially for the suggestive ways forward into the 19th and 20th centuries. I gestured to that in the conclusion and you anticipate me, I am thinking about, especially the school’s question. I think you’re right to focus on the school’s question as really the fulcrum for 19th century, especially, but also 20th century American Catholic history vis-a-vis constitutional history. So we’ll continue to talk about that and maybe we can talk a little bit more deeply in the Q&A now. But to your two questions about infallibility and the double denials, right, infallibility and the authority in temporalis, as they say in Latin, right, in temporal affairs. On infallibility, I think that’s particularly thorny because when you read John Locke, for instance, he’s not just saying that the Pope can’t intervene in temporal affairs of other countries.

Of course not, right? It’s also about what he calls in one of his translations of a French thinker, the sort of priest craft that makes Catholics blindly obey. The blind obedience, the kind of tyranny of the mind, the slavishness of Catholic minds, all this kind of language that you get in Protestant political culture. And so even if the Pope is not directly intervened in the temporal affairs, as Gerry Bradley mentioned, the excommunication of Queen Elizabeth I. I could also mention Pope Alexander’s papal bull that divides the earth into two, Portuguese and Spanish territory. And critically, apparently excommunicates anyone who abrogates that papal bull, which I can only conclude implicitly excommunicated the founder of Maryland who is colonizing in what the Pope had seen as Spanish territory, without permission. But that was resolved later on in a treaty between Portugal and Spain. So all is well, I think. So all these interventions in temporal affairs, even if the Pope never did that, the very potential of the Pope declaring something infallibly, whatever that means, right?

Because we don’t really know until the 19th century when it’s dogmatically declared, if he declares something infallibly, that could have political repercussions. And the very fact that the Pope has said that he has this power, even if he never uses it, that aggregates Republican or Neo-Roman liberty. The very presence of an arbitrary foreign power, even if that power’s not using its power at the particular moment, means that you are unfree. So it’s a very, very… It’s an existential threat. I don’t think that’s an exaggeration. Now, I think in some ways I refer to the question of infallibility, what does it mean? I think in some ways the First Vatican Council helps, because it defines it and it defines it rather strictly, quite clearly, and it means that it often is not invoked, which means that the kind of Protestant imagination or non-Catholic imagination of what infallibility means becomes less frightening, maybe?

Okay, it’s been declared about a certain aspect of veneration to Mary, and so on and so forth. That doesn’t seem politically dangerous. Whereas before people would say, well, is this excommunication of Queen Elizabeth I infallible? Is this determination and so on and so forth infallible? So I think that actually helps in certain ways. I hope that assuages some concern on your part. But all the same, I think the existential threat that John Locke is signaling, I think remains, right? If you think, even if it’s not infallibility, even if it’s ascent of willing intellect, as Catholics are required to take solemn papal documents. That, too, I think would draw the ire of someone like John Locke.

And the early Catholic conciliarist response to this is, well, effectively we have a kind of check and balance here, which is our ordinary local bishop. And so that’s where the idea of the Book of Rome is the bishop of among equals, the first among equals, he’s the Bishop of Rome. But national bishops have some kind of jurisdiction here too. And so they can only accept a papal document. It’s only operable when they accept it. And John Carroll uses this language when he talks about the free masons and the bulls condemning free masonry. So I wonder, with the new talk about synodality, and sort of the power of ordinary bishops, I wonder if that’s sort of coming back as a way to, in some ways, align more with sort of American Republican sensibilities.

Kyle Duncan (00:58:36):
Do we have any questions, anyone?

Joel Alicea (00:58:38):
Before we open air, I wanted first to say, wanted to make sure we thanked our co-sponsor the Notre Dame Center for Citizenship and Constitutional Government. We appreciate their support and we’ll have time for one brief question. I think Mike already raised his hand.

Mike (00:58:59):
First, thank you all for coming. This is a real treat for us in the middle of a law school day. My question kind of springs off of Judge Duncan’s questions actually, in terms of people infallibility and the fears that were around and present of having Catholics in public office from our founding. How might, on a personal individual level, a Catholic in public office approach these ideas today? One of submission to church authority and this idea of papal infallibility and being a faithful Catholic. And on the other hand, submitting to civil authority and making oath to serve your country and uphold the Constitution. Are those two ideas in tension, like we thought a couple hundred years ago, or are they actually more compatible than we initially thought?

Kyle Duncan (00:59:49):
Great question. Who wants to take that one?

Gerard Bradley (00:59:52):
I’m the second banana here. I suppose Michael and I, both, I read the bull about Elizabeth and Michael mentioned Alexander, yet maybe it wrung a misimpression. I realize that kind of talk is catnip to the integralists who are present. But I think Michael and I mean not to recommend that way of thinking about papal authority.

Kyle Duncan (01:00:15):
I think Queen Elizabeth was a heretic. Is that a problem?

Gerard Bradley (01:00:18):
But it doesn’t mean she’s not the Queen anymore.

Kyle Duncan (01:00:22):
Well, true, but a heretic nonetheless.

Gerard Bradley (01:00:23):
She can take care of it if she wants. But, I mean, you can pick up, oh, probably two or three or four sources in which you can see this exact question posed and then answered, well, such as it was answered by John Kennedy. I mean, Kennedy put it very bluntly and pretty much on those terms, and his answer was, well, no Pope or bishop will let it tell me what to do vis-a-vis my public duties.

Kyle Duncan (01:00:50):
I mean, did he go too far when he did that?

Gerard Bradley (01:00:52):
Yeah, I think so. I mean, I think the way to reconcile, if that’s the right word, or alleviate tension is… I mean, everybody has to behave conscientiously, whether you’re in public office or not, and you have to act upon the basis of what you affirm and judge to be true. So we get distracted, or we’re sort of invited to avert our gaze at that by, I don’t know if it’s conservative, but politicians who say, well, of course I believe this as a Catholic, but I would never dream of imposing my view. Well, that’s to talk about something different.

Kyle Duncan (01:01:21):
That’s a Mario Cuomo line.

Gerard Bradley (01:01:23):
Yeah, a Cuomo line. For all I know, the president has said something like that, I’m not sure. But that’s the wrong way to think of it. The thing is, well, what is it you affirm to be true based on all of the sources of truth that you credit? And if it’s in your judgment true that people begin at conception, well then that’s the deal, and it’s no longer a question of submitting to one authority as opposed to the other. So you might say the path through conscience is the via media between submitting to the Pope or submitting to the Constitution.

Kyle Duncan (01:01:56):
I would say that, of course, I’m relieved that questions about a religious identity or religious dogma would never, ever come up in a judicial confirmation hearing. A Supreme Court Justice would never be asked, for example, whether the dogma lived loudly in him or her, for example. I mean, that would be outrageous, right? So look, I mean, I’m reading this book about the oaths thinking if I were required to take an oath that I’m independent from the Pope to serve as a federal judge, my answer would be, and yes, this is being recorded, hell no, I’m not going to take that oath, right? It’s no business of the United States, whether I consider myself independent of the Pope, but I can say that because the idea that the Pope is going to excommunicate… Well, the idea that the Pope is going to call me up on the phone and say, that administrative law decision that you released last week, that’s not okay, right.

There’s a bull from 1531 that said, no, the FTC actually can do that. Of course, that’s not going to happen. It’s so foreign to our way of thinking. And what Professor Breidenbach and Gerry are talking about is it wasn’t as foreign to the sort of mental headspace of people back then. Although I take Iredell’s comments to be making fun of that guy. To be saying, you got to be kidding me. You think the Pope’s going to become president? But anyway, I think these questions are incredibly pertinent, relevant, and when you are nominated to be a federal district judge, which I hope will be next year, and you’re asked, does your allegiance to the Pope, if you’re Catholic, prevent you from being a federal judge? I think the proper response to that is, you’ve got to be kidding me. I mean, we have a No Religious Test Clause in the Constitution. You can’t be asking me that. But that’s just why I’m not on the Supreme Court. Sorry, I think we only had one question, but if you ask it really quick, then I think you can ask it.

Eric (01:03:54):
Excuse me. I promise it’ll be quick.  [inaudible 01:03:58]

Can you hear me?

Kyle Duncan (01:04:03):
I can hear you.

Eric (01:04:04):
Okay. So I’m going to take his line of thought, but instead of saying reconcile religious obligations and public obligations… And personally, my thesis would be that they cannot be reconciled but harmonized so that they can work in harmony together. Is that a stretch or do you have any thoughts on that? Thank you.

Kyle Duncan (01:04:29):
Certainly the characters that Professor Breidenbach is writing about believed that they could be harmonized. Was there, professor, in your research on this, which is voluminous, did you run across characters who are trying to harmonize their responsibilities to the Church and to America or to conciliarism or whatever, and it was evident that they didn’t really believe it, that they were struggling with it? Certainly, so when I read about the Carrolls or the Calverts, it seemed like they were pretty settled in their minds that the Pope had no temporal jurisdiction. But is there any evidence of the contrary?

Michael Breidenbach (01:05:11):
Yeah, I don’t think it’s a story in which these figures are oppressed into political expediency. I think certainly they have lots of good political reasons to say what they do. I don’t think they say it because it’s politically opportune. And the reason I say this is because even before they enter into practical affairs, I’m thinking of Charles and Daniel Carroll and many other people that we haven’t talked about, which forms at least half the book, which is the English proper, like in England, this is a settled view in English Catholic circles-

Kyle Duncan (01:05:50):
But at some point the Jesuits seemed to do an about-face, at least as I’m reading it. The Jesuits flipped at some point. That’s oversimplifying, but is that, why did that happen?

Michael Breidenbach (01:06:00):
Yeah, the French Jesuits go so far as to support the Gallican Declaration, which is a conciliarist document. And the Jesuits are the greatest defenders of papalism in the 16th century. So I think a flip, at least the Parisian Jesuits, they do an about-face. But I think it’s… And it’s not just a happy coincidence. I think there is a kind of fomenting which the kind of conciliarism that we see in the Middle Ages begin to bear fruit in the political sphere as well, right, the Republican ballot. So they’re kind of mutually enforcing ideologies, and so that’s why Anglicans can also quote conciliarists when they’re talking about a non-political bishop. Because of course, they now can’t take oath to King George III after the revolution, so they’re also drawing on conciliarist Catholic thinkers as well. The question has been brought up about contemporary implications here, so let me just chime in briefly on that.

The question of, let’s call it eucharistic coherence, or however you want to define it, among Catholic politicians and office holders, I agree with both of you. I think John F. Kennedy stated it to baldly, and I believe in his strict and absolute separation of church and state. I think I’ve been going through the archives on that speech, and it’s clear to me that his advisors, all his advisors, didn’t actually believe what he was saying either. He was sort of using this as a political maneuver, but it was wildly successful. The other thing is speech plus the Q&A. The Q&A is never talked about, so I encourage those interested to read the Q&A where the Protestant ministers are really hammering at him. Very, very fine tune questions-

Kyle Duncan (01:07:52):
There’s a record of that? There’s a written record?

Michael Breidenbach (01:07:53):
And there is. Yeah, there’s a video. You can watch the video. He’s a master. He’s an absolute political master. I think one way to think about this is, as Gerry mentioned, is the form of conscience. And we see this in the early modern English context as well. They talk about the form of conscience. Even those Catholics who wanted to say that the earth religions could be taken, despite the fact that Pope says if you take it, you’ll be excommunicated. They say there’s a form of conscience, some of these, in which you could take it, if you think about it in a certain way. This is not Jesuitical jujitsu, it’s actually a very sophisticated set of bargains that they use. I’m not persuaded by them, but it’s in that tradition of saying, look, the Pope has declared as such, but he doesn’t fully understand the situation. He sees this as a direct threat against his power, it really isn’t, and so on and so forth.

So I think these are very careful decisions, and that’s why I want to put all those kind of questions in the realm of prudence, right? So think about analogously, about dual allegiances, right? When you take the oath, the naturalization oath, which has remained the same since 1795, it says you abjure all other foreign allegiances, which means that, I mean, technically you can’t be a Canadian and American citizen at the same time, according to the naturalization oath. And yet it is tolerated. And indeed by law, I think it’s acceptable.

So how do we explain that, right? It’s because Canada is not a threat to the United States. So this is to Judge Duncan’s point it. It’s not the sort of thing on a practical level that we should be concerned about. Maybe at a very high level of Canada and the United States going to war or something, then they’ll have to choose a side. But given the overlap, the heritage, the set of laws, the common good that the US shares with Catholic social teaching and so on… Not always, right, but given that high degree of overlap, their argument would be that there’s a general acceptance here that we shouldn’t really worry about it. So it’s only in times of great crisis, like an English Reformation or something like that, that we begin to talk about these things in greater earnest and begin to parse out the particular oaths or whatever is required of us.

Kyle Duncan (01:10:12):
Well, I think we’re out of time. Am I right? So let’s all thank Professor Breidenbach and Professor Bradley for their comments.

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