On January 22, 1973—a day that will live in infamy—our nation’s Supreme Court declared that our national Constitution prohibits our government from protecting the lives of prenatal children against elective abortion. The Court held that constitutional “liberty” includes the right to abortion.
On January 22, 1899—precisely 74 years earlier—our Church’s Supreme Pontiff sent to Cardinal James Gibbons of Baltimore a letter condemning “Americanism”—insofar as this “ism” involved certain “novel ideas” that “confounded liberty with license.” According to Leo XIII, the misguided “lovers of novelty” championed the purported right of everyone “to follow out more freely the leading of his own mind and the trend of his own proper activity.”
According to Pope Leo, Americanist individualist licentiousness implicated, inter alia, (1)“the assumed right to hold whatever opinions one pleases upon any subject and to set them forth in print to the world,” (2) the rejection of papal authority, and (3) the denigration of the religious life with its vow of obedience, in favor of the unattached life of the layman. Further, as Leo had suggested in his encyclical Lonquinqua, Americanism had so exaggerated religious liberty so as prefer the separation of church and state, to the disregard of the Catholic Church’s presumptive right to the “favor of the laws and the patronage of the public authority.”
But did this Americanist “liberty” produce the Supreme Court’s abortion “liberty”?
In America on Trial: A Defense of the Founding, Robert Reilly addresses this critique but in a more radical form. According to some, including Patrick Deneen and Michael Hanby, the American Founding as a whole produced Roe v. Wade, Obergefell v. Hodges, and today’s other “deleterious developments,” for the central idea of the Founding—the “rights” to be secured—were, from the beginning, “fatally infected with a notion of radical individualism.”
This condemnation is more comprehensive than Pope Leo’s. The Holy Father expressly exempted from condemnation America’s “political condition and the laws and customs” by which America was governed. Indeed, in Longuinqua, he spoke of the American Founding not as a curse but as a blessing:
[By] some design of divine Providence…[p]recisely at the epoch when the American colonies, having, with Catholic aid, achieved liberty and independence, coalesced into a constitutional Republic the ecclesiastical hierarchy was happily established amongst you; and at the very time when the popular suffrage placed the great Washington at the helm of the Republic, the first bishop was set by apostolic authority over the American Church. The well-known friendship and familiar intercourse which subsisted between these two men seems to be an evidence that the United States ought to be conjoined in concord and amity with the Catholic Church.
Thus, Leo seemed to approve both the Founders’ Revolution and their Constitution, including especially its popular form. In addition, he specifically mentioned Washington’s “keenness of insight worthy of his genius and statesmanship” in noting that religion was necessary to morality, and morality necessary to the survival of the Republic.
One might thus call Leo a “Cafeteria Americanist.” Meanwhile, Deneen, Handy, and others prefer to bring their lunch in a premodern, and very brown bag—with the label “NOT made in America.”
In large measure, Reilly’s work largely vindicates and expands on Pope Leo’s general approval of the Founding. As he shows, America’s Founding was not a modernist celebration of the autonomous will—whether of the individual or of the majority. Rather, the Founding reflected pre-modern principles of natural and revealed truth—viz., the submission of man to God and of will to reason; the full recognition of the dignity of man; and the propriety of government ordained to that universal dignity, including popular consent and representative assemblies, but with separation of powers, in recognition of universal human corruption. The Republic, Reilly convincingly argues, cannot simply be rejected as modernist and corrupt.
But in two important respects, Reilly’s defense is incomplete. We can look first to the nonestablishment criticized by Pope Leo. The Founders most certainly did not accord the Catholic Church the “favor of the laws”—and some, like Jefferson and Madison, insisted that religious liberty, rightly understood, barred all governmental religious establishments. To be sure, as Reilly points out, some state constitutions did favor Christianity (or Protestant Christianity in particular) by reserving certain public funds or public office on the basis of religion. Still, these measures proved controversial and fleeting; and by the 1830s, as Tocqueville observed, virtually all Americans favored separation of church and state as a state and federal constitutional rule.
At the same time, even if religious nonestablishment was a Founding failure, this principle cannot readily be blamed for our contemporary mess. Pope Leo himself does not suggest that American nonestablishment would lead to American licentiousness—still less the persecution of Christians (e.g., via purported anti-discrimination laws). Instead, he largely endorsed America’s constitution for securing the liberty of the Church:
Thanks are due to the equity of the laws which obtain in America and to the customs of the well-ordered Republic. For the Church amongst you, unopposed by the Constitution and government of your nation, fettered by no hostile legislation, protected against violence by the common laws and the impartiality of the tribunals, is free to live and act without hindrance.
Stated otherwise, Pope Leo suggested that America’s constitution, even with nonestablishment, was helpful to the endurance of Christian morals and freedom.
Yet perhaps there is some remote connection between American nonestablishment and American licentiousness. As Reilly emphasizes throughout the work, the American Founding, in its noblest principles, owes much to the Christian tradition and in particular to ideas and institutions developed in places where the Catholic Church had indeed enjoyed the favor of the laws.. If so, it is at least plausible that the preservation of those principles might have required the preservation of that legal preference. If instead, religious nonestablishment tacitly but firmly taught religious indifferentism, then the people were likely to disregard first Christianity and then Christian morals and liberty.
Second, the Founders’ individualism fostered not only religious disestablishment but also familial disestablishment. Here the principal difficulty was the Founders’ silence. The Founders’ anthropological claims, as set forth in the Declaration of Independence and many state constitutions—spoke of the individual’s right to life, liberty, property, and happiness, but were deafeningly silent as to the individual’s right to the care of his offspring, the resulting joint right of mother and father to this care—and the resulting reciprocal duties and rights between the parents, and from the child to the parents.
In sharp contrast, Aristotle had given the family primacy of place in his political anthropology; his argument for man’s political nature began with the observation that man is by nature a conjugal animal. Aquinas, for his part, enumerated not only man’s inclination to self-preservation, but next his inclination to the joint conception, reception, and care of offspring.
The Founders were most sharply at odds with the Decalogue. In its second table, one finds interpersonal duties first to parents, then to life, then to marriage, and then to property. The Founders’ “life, liberty and property” formulas skips both parents and matrimony—both the Fourth and the Sixth Commandments
The Founders marginalized the family not only by silence but sometimes by express words. Patrick Deneen rightly highlights, for instance, Massachusetts’ definition of the people in the Massachusetts Constitution of 1780, first drafted by John Adams: “The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people…” Where are children in this definition? And where is marriage—the association to jointly care for then? Infants are not members of the people—as they are plainly not free agents. Their very existence become theoretically anomalous—even though, as a matter of human fact, prenatal life is the universal rule, infancy less frequent (as babies die from miscarriage), and healthy adulthood even less frequent.
Now the Founders did not, from these principles, openly reject the joint duty of parents to offspring, or to one another, or the duties of the child to his parents. Nor did the Founders ever seriously begin to define the citizenry as a pure voluntarist compact. Citizenship at birth, whether on the Republic’s soil or as offspring of the Republic’s citizens, remained the normal basis for automatic nonconsensual citizenship.
It fell, for instance, to John Quincy Adams to clarify (or frankly, correct) his father’s definition of “the people.” In an 1842 discourse, he explained that “[t]he whole people of any given territory,” as the term was used in his father’s constitution, must include “all the human beings abiding upon it, men, women and children, born or in the womb, natives or foreigners, bond or free.” This assemblage, to be a people, does require some “association, for if you suppose a million of individuals congregated on one spot of earth ten miles square, they would not constitute a people, but by association and compact, and that association and compact must embrace them all.” Given the definition of “the people” it is plan that many—even most—members do not personally consent to membership: “The children unborn or under the age of reason, are incapable of forming any covenant. The women cannot contract separately from the men.”
Rather, the real political association is a community of families, represented by the father, not of autonomous individuals:
There is a family compact preceding that which constitutes the body politic the most sacred and solemn of all the covenants that man or woman is capable of contracting. It is only as a consequence of that compact that individuals exist, who constitute the body politic. The union of the sexes, founded in the law of nature, necessarily precedes the social compact which constitutes the body politic, which is an association of families.
Despite these sorts of Aristotelian or Christian correctives, the primacy of the oikos to the polis remained an understate principle. Americans did often acknowledge the natural, largely unchosen duty of parents to offspring, of parents to one another, and of offspring to parents—but principally in unestablished churches, in law books. Such ideas had virtually no place in America’s founding documents. Rather, these constitutions often suggested a political community of free and independent adults, free from parental, marital, or filial obligations.
At the very least, then, the American Founding had, from the beginning, a tendency to deny or even disparage certain interpersonal, and largely unchosen obligations. In this way, it can be said that the Founders “put baby in the corner,” and thus fostered an individualism so harmful to children’s integrity—whether the integrity of their parents’ union, or the integrity of their very bodies.
To be sure, it took nearly two centuries for this development to occur. It was thus, not a small step between the marginalization and the destruction of both family and prenatal life. As Reilly suggests—the sexual revolution was not a legitimate child of the American Revolution.
Still, Reilly does not fully exonerate the American Founding. From the beginning, the Founders’ individualism has tended to deny or disparage the duties and rights of both family and church. With Pope Leo XIII, we should embrace Cafeteria Americanism.
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