Faint Humor

The Articles of Confederation: A Satire

It has been quite a while since I have posted here. The majority of my writing has been, as ardent readers no doubt know, at Ius & Iustitium. I would not want to neglect the readers of Semiduplex, though. To that end, I offer a follow-up to Anglo-American Originalism: A Satire, published in May 2020 at The Josias.

I have been following the debate over Adrian Vermeule’s Common Good Constitutionalism with great interest. Ever since the publication of his essay in the Atlantic, Vermeule’s approach to constitutional interpretation has been one of the hottest topics in legal circles. Originalist legal academics have spent considerable energy opposing Vermeule’s theory. They have presented various objections of varying degrees of coherence, though none seems conclusive. Even Amy Coney Barrett took the occasion of a memorial post for a mentor to come out against it. For his part, Vermeule has answered his critics in various places, and even as I write this a symposium, at Harvard, hosted by the Harvard Journal of Law and Public Policy, will address common-good constitutionalism is taking place tomorrow.

The originalists are I think missing altogether an important aspect of our Constitutional landscape, namely that the Constitution was adopted by way of a procedure that was not authorized in the Articles of Confederation. The Articles of Confederation were adopted in November 1777 and became effective on March 1, 1781. According to the history one learns in school, the Articles of Confederation were an unworkable mess that hamstrung the federal government from doing things everyone agreed that it should do. So they came up with the Constitution, which replaced the Articles of Confederation, and that has been the operational document for the Republic since 1789 (as amended).

The problem becomes clear upon a quick review of the Articles of Confederation, which I doubt anyone has read (if at all) since school. If you need a refresher, here goes. Article XIII of the Articles of Confederation establishes the procedure for lawful changes to the Articles and provides:

Every State shall abide by the determinations of the united states, in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.

We can get a quick idea of the original semantic meaning of this text by consulting an old friend of any originalist: Noah Webster’s 1828 American Dictionary of the English Language, which defines “perpetual” in the first place as “Never ceasing; continuing forever in future time; destined to be eternal; as a perpetual covenant; a perpetual statute.” He also defines “inviolable” as (in the second place) “Not to be broken; as an inviolable league, covenant, agreement, contract, vow or promise.” And he defines “alteration” as “The act of making different, or of varying in some particular; an altering or partial change; also the change made, or the loss or acquisition of qualities not essential to the form or nature of a thing.”

Article XIII is clear: the Articles were to be observed without being broken forever, and any “alteration” had to be agreed to “in a congress of the united states” and then “confirmed by the legislatures of every state.” Webster’s definition suggests that, in America at about the time of the Articles of Confederation, an “alteration” was understood as something touching upon a particular but not the form or nature of a thing. The form or the nature of the United States as established by the Articles of Confederation would be, then, “never ceasing; continuing forever in future time” and so forth.

And it is clear that the Articles could not be amended or otherwise changed by custom or some parallel usage. Article XIII provides the sole means of “alteration” of the Articles, which were otherwise to be inviolably observed in a perpetual union. While custom may well be a source of law, an interpreter of law, and an abolisher of law on Thomas Aquinas’s account, it has nothing to do with the procedure established in Article XIII. When, however, the current United States Constitution was proposed, it was submitted for ratification in a manner that was inconsistent with Article XIII of the Articles of Confederation. Article VII of the Constitution states: “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”

We know that the ratification of the Constitution proceeded along the lines set forth in Article VII. The states convened ratification conventions, which, at length, ratified the Constitution. One might take the resolution in September 1787 of the Congress transmitting the Constitution to the states as the sort of approval of “alterations” envisioned by the Articles, if the Constitution represented an alteration as the term would have been understood. But it doesn’t matter if it was: Article XIII is clear—the state legislatures, not conventions, must assent unanimously to any alteration of the Articles. None of this 9/13ths business. Some number of states could make a side deal, of course, but that would be nothing to do with the United States.

The originalists have established that the procedure outlined in Article XIII is not merely binding as a semantic matter but also as a moral matter. Recall, as certain originalists have reminded us, that Thomas Aquinas holds that a law “nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”—”is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II q.90 a.4 co.). The Articles of Confederation were therefore lex in the classical conception, since they were an ordinance of reason for the common good, made by him who has care of the community, and promulgated. The authority of the lawgiver in the case of all leges must be considered, we are reminded, and the authority of the lawgiver is owed obedience (ST II-II q.104, esp. a.2 co.).

It is unavailing to contend, as one might at this point and as James Madison did in Federalist 40, that there is some other arrangement that will achieve the ends of the Union better than the Articles of Confederation. The lawmaker behind the Articles chose to convey its judgment about the best way to achieve the ends of the Union through language that was, as the originalists have informed us indefatigably, understood a certain way by its contemporaries. The semantic content cannot be ignored or escaped. In fact, the semantic content of the leges as it would have been understood by a contemporary is how we determine how we obey the lawgiver. And Webster offers a clear picture of the semantic content of Article XIII.

To propose a change in the Articles of Confederation separate and apart from the procedure outlined in Article XIII, to say nothing of pursuing the course outlined by such a proposal, is to disobey the authority of the lawgiver. James Madison’s arguments in Federalist 40, therefore, are not only beside the point; they run the risk of immorality. Congress, in the resolution of February 21, 1787 called for a convention to determine “such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” Such a resolution in and of itself, however, was insufficient to authorize the plan of wholesale replacement urged by Madison in Federalist 40.

And Madison, I think, frankly admits as much. He concludes Federalist 40 with a veritable ode to disobedience of the letter of the lex in the name of ius and the bonum commune:

The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. 

Such rhetoric would not be out of place in the writings of any adherent to common-good constitutionalism. But if it did appear there, it would no doubt be met with the charge that it is wholly inapposite. We owe obedience to superiors and their authority, and in this case the superior, through Article XIII, issued a lex expressing its considered judgment that a certain procedure for alteration (but not replacement) of the Articles of Confederation is the lawful means of alteration. Madison’s argument was therefore a case for disobedience, a case for tearing up the Articles of Confederation. To put it another way, “confidential servants” of the United States owe obedience to the authority of the legislator just as much as judges do.

Now, someone rooted in the classical tradition might object and say that everyone since 1787 has acted in accordance with the understanding that the Constitution, not the Articles of Confederation, was the foundational document for the federal government. Indeed, one may say that almost every aspect of our political and legal existence is predicated on an order under the Constitution, not the Articles. But the natural reply is this: so what? Article XIII leaves no room for custom and no room for what amounts to reliance interests. One may reply further that the supposed reliance is actually one act of disobedience to the authority that promulgated the Articles after another.

In other words, Madison’s arguments in Federalist 40 are precisely the sorts of arguments that are inadmissible under the natural law insofar as they counsel disobedience to the authority of the lawmaker of the Articles. The question for originalists, therefore, is not how a given provision of the Constitution is to be interpreted, but whether the Constitution should be interpreted at all. Under the principles advanced by the originalists against Vermeule’s Common Good Constitutionalism, it seems to me that there is a strong case that the Constitution was not properly adopted and that the Articles of Confederation remain the governing instrument for the Republic, which does not include most purported states, including Indiana.

The originalists’ blindness to this problem is surprising, since the principles they have marshaled against common-good constitutionalism provide a clear exposition of precisely the issue with the adoption of the Constitution against the clear lex of Article XIII of the Articles of Confederation. I wish I had a good idea of where to go next. But it is, I confess, not my primary concern. For the moment, I am going to be reading the Northwest Ordinance and any other relevant acts of the Continental Congress with great attention to try to figure out how local government in what used to be Indiana works.

The Quartodeciman Controversy

One reads St. John Henry Newman’s writings or the writings of Fr. Adrian Fortescue and one finds profound knowledge of and interest in the history of the Church, especially the Apostolic and Patristic periods. And this knowledge was not merely quaint antiquarian diversion, the way someone might know about small-gauge railroads in a given county at the turn of the century. These figures brought Church history to bear on questions of doctrine and practice that were live controversies in their days. Of course, their historical works are hugely entertaining and erudite as literary monuments, too.

By contrast—and let me say at the outset that I am as guilty of it as the next fellow—today we seem not to have the same interest in the history of the Church or the precedents of the Apostolic or Patristic eras. To be sure, their theology is often referred to. But one hardly sees discussions of Eusebius’s Ecclesiastical History with the same frequency one sees discussions of Augustine’s Confessions or City of God. This is too bad. In a 2007 general audience, Pope Benedict XVI praised Eusebius’s history as a source of “fundamental importance.” Benedict went on to make a startling statement, considering the lack of interest one sees in Eusebius, even among educated Christians:

Thus, Eusebius strongly challenges believers of all times on their approach to the events of history and of the Church in particular. He also challenges us: what is our attitude with regard to the Church’s experiences? Is it the attitude of those who are interested in it merely out of curiosity, or even in search of something sensational or shocking at all costs? Or is it an attitude full of love and open to the mystery of those who know – through faith – that they can trace in the history of the Church those signs of God’s love and the great works of salvation wrought by him?

Given the weight that a theologian and churchman like Benedict gave to the Ecclesiastical History, one feels compelled to crack open the dusty old Loeb (or Penguin) and cast around for scenes of interest. One such scene comes at the very end of Book 5 (5.23-5.25), where Eusebius recounts the Quartodeciman Controversy. One of the reasons why Benedict considered the Ecclesiastical History of such importance is because Eusebius preserved primary sources in his history for which he is the sole source. A particularly good example of this is found in his treatment of the Quartodeciman Controversy.

The dioceses of Asia held that Easter should be celebrated on the 14th of Nisan, following the definition of Passover and the preparation for Passover given in Leviticus 23. Naturally this may or may not be a Sunday, but regardless of whether or not it was a Sunday, that’s when the Lenten fast ended and Easter began. The opinion elsewhere was that one should not end the fast except on a Sunday—the day of the Lord’s Resurrection. The latter opinion, Eusebius tells us, was universal and was handed down by the Apostles themselves.

This matter became a live controversy toward the end of the Second Century. Synods were held in Rome, Palestine, Pontus, Gaul, and Osrhoene. Pope St. Victor presided over the Roman synod and St. Irenaeus presided over the synod in Gaul. (This will be relevant in a little while.) All of these councils reached the unanimous conclusion based upon the apostolic tradition: Easter is celebrated and the fast ends on a Sunday, not the 14th of Nisan.

The Quartodeciman bishops were, needless to say, unhappy that the judgment of Christendom had gone against them. Bishop Polycrates of Ephesus wrote to Victor, arguing in favor of their tradition. Eusebius quotes his letter at some length. In sum, he argues that the churches of Asia are decorated by saints asleep in the Lord, like St. John and St. Polycarp, all of whom maintained that Easter began on the 14th of Nisan, regardless of the day. Polycrates’s letter concluded in a manner perhaps not unfamiliar even today: he was not scared of threats and it is better to obey God rather than men.

Pope Victor was not altogether amused by Polycrates’s response, nor, insofar as we can tell, was he impressed by Polycrates’s stand on principle. He either excommunicated all the churches of Asia or threatened to do so on the ground of heterodoxy. Fortescue suggests that either he never actually published his decree excommunicating all the Christians in Asia or he withdrew the decree very quickly. We’ll come to that in a moment. What matters is that Victor’s initial reaction to Polycrates’s stand on tradition was to excommunicate not merely Polycrates but all the Christians in Asia.

Word got around. One doubts that this is something that happened all that often in those days. And other bishops offered Victor their views on the matter. By and large they did not think Victor was doing the right thing. Indeed, Eusebius says that they thought Victor ought not to do what he had in mind. In fact, the bishops asked Victor to turn his mind toward peace and unity and love, suggesting that they thought his plan to excommunicate the churches of Asia was contrary to peace and unity and love. Among the bishops who suggested that Victor had perhaps gone a little too far was St. Irenaeus.

Irenaeus was in a unique position in the controversy. Born in Smyrna to a Christian family, Irenaeus grew up around Polycarp, who had been cited by Polycrates as an authority in support of the Quartodecimans. And of course Polycarp himself was a disciple of St. John. By the time of the controversy, Irenaeus was bishop of Lyon in Gaul. However, one would be surprised if he did not have some insight into the Asian practice and the controversy. For his part, he reached the conclusion that Easter had to be celebrated on a Sunday notwithstanding the timing of Passover given in Leviticus.

Nevertheless, Irenaeus wrote Victor, urging him not to excommunicate all Asia. Irenaeus’s claim was that Victor ought not to excommunicate all these Christians merely for following their fathers’ tradition, which was, after all, itself unbroken. He observed that the dating was not the sole controversy, the fast was part of it. And there was much variation about the fast. But even if dating were the sole controversy, there was still insufficient ground to excommunicate them. Victor’s predecessors Anicetus, Pius, Hyginus, Telesphorus, and Xystus had all rejected the Quartodeciman position and kept the Roman Church free from error. But they had lived in peace with the Quartodecimans. Indeed, it was never suggested that this difference in calculation was a matter of heterodoxy rising to the level of severing communion.

Irenaeus made a particularly interesting point about the fast. It is worth dwelling on for a moment. Some kept the fast for a day, some for two days, others for forty hours. It appears—from Irenaeus and Tertullian—that the Lenten fast observed in those days was not universally the forty-day fast we know today. Within a couple of hundred years, the Lenten fast we know had emerged. At any rate, Irenaeus claimed that the variation in how the fast was kept demonstrated the unity of the Church, because all the people who kept the fast in various ways lived in peace with one another. In other words, diversity in practice among people who are at peace with one another is testimony to the essential unanimity of the faith.

Turning back to the date question, Irenaeus was particularly interested in Pope Anicetus’s conduct, which had a significant bearing on this question. Polycarp came to Rome during Anicetus’s reign. The matter of the dating of Easter came up. Anicetus and Polycarp simply could not agree on it. Anicetus could not get Polycarp to budge an inch: Polycarp stood on the tradition he received from St. John and other apostles. Polycarp could not get Anicetus to budge an inch, either: Anicetus had received a tradition from his fathers in the faith just like Polycarp did. However, this dispute did not result in a breach of communion between Anicetus and Polycarp, much less the sort of excommunication Victor had in mind. In fact, Anicetus made way for Polycarp to celebrate the Eucharist according to his tradition.

Victor seems to have changed his mind: either he never issued the excommunication he threatened or he withdrew it at once. And as is the case of so many heresies in the history of the Church, the Quartodeciman position died out. Two bishops, Narcissus of Jerusalem and Theophilus of Caesarea, prepared a brief for the apostolic tradition of celebrating Easter on a Sunday and observed that the Church of Alexandria had maintained the same practice, with an exchange of letters annually to ensure that everyone kept the same date. In the way of this, Eusebius tells us, the Quartodecimans were rebutted and unanimity achieved.

The Quartodeciman Controversy is an interesting moment in the life of the Church. Two practices existed side by side for a period of time. Suddenly, it becomes a doctrinal controversy. Eusebius does not quite explain what set off the explosion. Something had to, but it is not clear what it was. The various churches held councils and arrived at an opinion founded upon the teaching of the Apostles. Except for some holdouts. The holdouts informed Pope Victor that they stood on the tradition of the Apostles and saints and martyrs of Asia and were ultimately responsible to God, threats or no threats.

Pope Victor responded by declaring the practice of the Quartodecimans heterodox and threatening to excommunicate all the Christians of Asia. A drastic measure, to say the least. Such a peremptory action even today would be a sweeping exercise of papal jurisdiction. It’s rare enough for the pope to excommunicate anyone, much less everyone in a province, even on grounds much more certain than the grounds offered by the Quartodecimans. Victor’s brothers in the episcopate urged him to reconsider, to abandon the course of excommunication in favor of other means of preserving the unity and peace of the Church. Irenaeus in particular wrote him about the practice of the Church of Rome, which had been to tolerate the diversity in this discipline, even as it held, from apostolic origin, another discipline, in which the other churches of the world concurred. And in the end Victor reconsidered his approach.

There is perhaps a lesson here. Indeed, there must be. Benedict, in his 2007 address of Eusebius says, “Historical analysis is never an end in itself; it is not made solely with a view to knowing the past; rather, it focuses decisively on conversion and on an authentic witness of Christian life on the part of the faithful. It is a guide for us, too.” The Quartodeciman Controversy as presented by Eusebius is not merely an interesting historical highlight, made notable because the players in it are important for other reasons. His analysis of the situation serves therefore as a guide for us and ought to be approached as such.

One lesson is a lesson, as I said, that one finds written in the histories of many heresies that have afflicted the Church. Patient argument and the passage of time often resolve controversies more effectively than peremptory action. Narcissus and Theophilus analyzed the question relying on the apostolic traditions of their churches and came up with the case for the practice approved by the councils of the other churches, including Rome. Victor’s excommunication of Asia was ultimately not necessary. Once Narcissus and Theophilus had made their case, the Quartodecimans’ days were numbered. And today no one is a Quartodeciman.

Of course, the Quartodeciman Controversy has featured in various polemics between the protestants and the Church of Rome. In his splendid little book The Early Papacy, Fr. Adrian Fortescue makes some observations about this affair. Notably, no one suggests that Victor had not jurisdiction over the Quartodecimans. Second, Irenaeus does not say that Victor had not the power to excommunicate the Quartodecimans. Fortescue notes that Irenaeus (and the other bishops who wrote to Victor) merely holds that Victor should not excommunicate the Quartodecimans.

The question of the pope’s jurisdiction had been settled much earlier, when Pope St. Clement wrote to the Corinthians and commanded them to submit once again to their bishops. No one suggested then that Clement, who, as Fortescue drolly observes, was early enough that his name appears in the New Testament, had not the authority to command the Corinthians to do or not to do something. And no one, least of all Irenaeus, suggested that Victor had not the authority to declare the Quartodeciman opinion wrong. Irenaeus in fact thought it was wrong.

Nevertheless Irenaeus took Polycrates’s point and urged Victor to do likewise. The churches of Asia stood on a tradition no less venerable than the tradition of Rome. Victor’s predecessors, most notably Anicetus, had disagreed with the tradition, but had maintained peace with Polycarp, who held the position firmly and claimed to have received it from St. John himself. Ultimately the Quartodecimans were defeated not by a peremptory excommunication of the Christians of Asia but by the careful argument of Narcissus and Theophilus (and some others).

Fortescue points out that Irenaeus’s point is merely that Victor had better not excommunicate the Quartodecimans. It was not how this matter had been handled by his predecessors, who had, in fact, had occasion to consider it. However, Fortescue does not dwell on Irenaeus’s point about diversity in practice revealing unity in faith. Pope Victor was not wrong about the merits of the case nor was he acting ultra vires. Irenaeus simply pointed out that he was looking at it wrong. It was not a sign of heterodoxy for the churches of Asia to follow the practice of their fathers, a practice that stretched back through Polycarp to St. John. That Anicetus and Polycarp could be at peace was instead a testimony to the unity of the faith.

One finds in a few short chapters of one book of Eusebius’s Ecclesiastical History matter for much thought. Indeed, the passage throws some light on many modern controversies. How ought the pope to exercise his unquestionable jurisdiction? How ought one to relate to the pope when one thinks he’s making a mistake? What is the connection between doctrine and practice? Is there room in the Church for more than one practice? Obviously the answers these questions require more than one source, but, as Benedict says, Eusebius’s history is a source (and contains itself sources) of fundamental importance to begin to answer those questions.

Law and the concept of happiness

There is a tendency, especially when discussing questions of law and politics in the classical, Catholic tradition, to overlook the meaning of the terms and concepts used by Aquinas and others in their expressions of that tradition. But Aquinas reminds us: “parvus error in principio magnus est in fine”—“a little error in the beginning is a big one in the end” (De ente et essentia, Prooemium). It is therefore necessary to keep these definitions in mind. An exploration of the consequences of a couple of central concepts—happiness and the common good—will suffice for a demonstration.

We know that in practical matters the first principle is the last end (ST IaIIae q.90 a.2 co.). The last end of human life is bliss or happiness (ST IaIIae q.2 a.7 co.). Aquinas tells us that law, therefore, must regard happiness and indeed, because man is a political animal, not just the happiness of an individual man but the happiness of the community (ST IaIIae q.90 a.2 co.). Aristotle tells us much the same thing when he treats justice in the Nicomachean Ethics: a just law produces and preserves happiness for the community (NE 5.1, 1129b12-27). And this happiness is the common good (In V Ethic. L.2, nos. 902–903),

So far, there is nothing too controversial in saying that laws must be framed to produce and preserve happiness for the community, which is the common good. A problem inevitably arises when the terms are used without any understanding of their meaning. It is all too common to hear the common good—or happiness—used mostly to mystify discussions or to smuggle in specific ideas, which have very little to do with the concepts as they are used. Insistence upon clear understandings of the concepts involved leads to clear understandings of the consequences of the claims made.

Let us follow its trail for a while and see where we wind up. Happiness, which is the same thing as the common good, has a concrete meaning. If the political community—if, for example, the state—is to secure and preserve happiness, then it is necessary to understand happiness. The first principle in practical matters is the last end (ST IaIIae q.90 a.2 co.). It may be suggested that happiness consists, for example, in a particular arrangement of political and economic conditions that allow for citizens to do or not do this or that thing. Indeed, even in Catholic discourse, one might hear temporal happiness described in such terms, with the suggestion that eternal happiness is added to that in some way.

Yet this is a serious error. For one thing, when one makes political prudence or science the highest wisdom, one necessarily supposes that man is the best thing in the universe, as Aristotle tells us (NE 6.7, 1141a20). Man is however not the most excellent thing in the world (In VI Ethic. L.6, no. 1186). Another consequence, if one holds that man is the most excellent thing in the universe—and, therefore, that political science is the most excellent—would be to make actually practical rule impossible. Charles de Koninck, in his Principle of the New Order, demonstrates that practical reason directs to an end in accordance with right reason. This requires one to know the end. To reject the primacy of the speculative is to knock the legs out from underneath this process: without speculative reason one cannot know the final end—which is the first principle. Practical rule dissolves into mere will and chance.

The speculative intellect is important not merely for making practical rule possible. In the classical account, it is the proper end of law and the essence common good. Aristotle tells us that the most excellent virtue—complete happiness—is contemplative (NE 10.7, 1177a12). That is to say, for Aristotle, to contemplate what is true is the best part of man. And the contemplative life is the perfectly happy life. Aquinas explains that the contemplation of truth consists both in discovering the truth and in reflecting on truth already discovered (In X Ethic. L.10, no. 2092). However, reflecting on truth already discovered is more perfect than the investigations leading to the discovery of truth. The perfectly happy life, therefore, comes from contemplation by reason perfected by the intellectual virtue of truth.

Aristotle and Aquinas alike extol the superiority of the contemplative life. Aquinas tells us that “vita contemplativa non est proprie humana, sed superhumana”—“the contemplative life is not properly human, but superhuman” (QD de virt. card. a.1 co.). However, “vita […] voluptuosa, quae inhaeret sensibilibus bonis, non est humana, sed bestialis”—the life of pleasure […] by which one adheres to sensible goods, is not human but bestial” (ibid.). Human life is the active life according to the moral virtues (ibid.). But it must be remembered that “vita activa, in qua perficiuntur morales, est ut ostium ad contemplativam”—“the active life, which is perfected by the moral virtues, is as a door to the contemplative life” (QD de virt. in communi a.13 ad 24). In other words, the contemplative is the best part of man, toward which the active life is ordered (cf. Metaphysics A, c.2, 982b5; In I De Anima c.1). Aquinas goes so far as to hold that to take pleasure in created things, as opposed to the permanent things that offer pleasure in the contemplative life, is to incur an impurity of affection (In X Ethic. L.10, no. 2091).

However, the centrality of the contemplative life goes well beyond being superhuman and the true end of the active life, perfected by the moral virtues. Aquinas teaches us that the maximum in any genus is the cause of all in that genus (ST Ia q.2 a.3 co.). He gives the example of heat: fire, the maximum heat, is the cause of all hot things. This principle returns in an unexpected place. In the so-called treatise on law, Aquinas tells us that in every genus, that which belongs to it chiefly is the principle of the others and the other things in that genus are subordinated to that thing (ST IaIIae q.90 a.2 co.). Once again, Aquinas uses the example of heat: fire is chief among hot things is the cause of heat in mixed bodies, which may be said to be hot insofar as they have a share in fire. It may therefore be said that the happiness of the contemplative life is the cause and principle of the happiness of the active life.

Therefore, the most just laws, which secure the greatest happiness for the political community, which have the greatest share of the common good, are laws producing and preserving the contemplative life. The law must lead the citizens of the political community to virtue (ST IaIIae q.95 a.1 co.). But the highest virtue is the virtue of the contemplative life. To the extent that the law fosters and promotes the virtues of the active life, it must be remembered that the active life is as a door to the contemplative life (QD de virt. in communi a.13 ad 24). The lawgiver must therefore have first and foremost in mind the virtues of the contemplative life: in practical matters the first principle is the last end. And the lawgiver must have in mind the fact the happiness of the contemplative life is the cause and principle of the happiness of the active life, even if the happiness of the active life involves some impurity of affection (In X Ethic. L.10, no. 2091).

One could go follow this trail a while longer and come to still more interesting and surprising sights, but the point is clear enough. Concepts like “happiness” and “the common good” have meanings in the classical tradition, and these meanings have consequences. When one attempts to define these terms in a wholly materialistic sense or, worse, to pretend that they have no fixed meanings, one reaches toward the formlessness of modernity. This is a terrible thing to do, reducing practical reason itself to chance, and it is still more terrible to do so unwittingly.

From Vermeule to Newman

Former Catholic and amateur butter importer Rod Dreher has criticized Harvard Law professor and current Catholic Adrian Vermeule for his insufficiently critical stance toward Pope Francis. Dreher, currently in communion with one of the several Orthodox jurisdictions in the United States, argues that Vermeule’s ultramontanism stems from Vermeule’s Schmittian priors. You can read the blog post and decide for yourselves. However, Dreher’s screed follows hot on the heels of a general meltdown over Francis’s decision to canonize Pope Paul VI. Additionally, Archbishop Carlo Maria Viganò continues to publish statements about his allegations regarding the handling of Archbishop Theodore McCarrick’s case. All of these things have us thinking about the correct mode of criticism and the need for crucial distinctions.

In some circles, it seems that the default position on Francis is one of criticism. This is true both. in traditionalist circles and mainstream conservative circles. Michael Brendan Dougherty just had a cover story at National Review setting forth “the case against Pope Francis.” Likewise, Ross Douthat of the New York Times has written a lengthy book, which is in some respects very critical of Francis. Other voices from more traditionalist circles, like H.J.A. Sire and Peter Kwasniewski, have been heard, raising issues personal and theological about Francis and his pontificate. Speaking purely for ourselves, and going purely on impressions, there seems to have been a shift in the criticism of Francis from raising questions about particular acts toward a general opposition to his pontificate.

We would not pretend that there are not serious questions about Francis’s pontificate. John Joy, for example, has set out an (unanswerable) argument that the Church’s teaching on the death penalty is infallible and irreformable, despite Francis’s decision to declare it “inadmissible.” We have discussed on innumerable occasions the debate over Amoris laetitia, which seems for the moment to have died down. (Francis’s insistence on the independence of episcopal conferences seems to have cut both ways in this case.) There are other issues that have cropped up, and the ongoing Youth Synod has been a flashpoint for still other issues, including same-sex attraction, contraception, and even the ghost of liturgical reform (a ghost that has gotten long in the tooth and whose shroud is moth eaten by now).

The doctrinal issues are, to our mind, somewhat separate and apart from the ongoing crisis roiling the American Church. The current iteration of the sex-abuse scandal has led to the downfall of not only Archbishop Theodore McCarrick but also Washington’s Donald Cardinal Wuerl. It appears that the U.S. Department of Justice is launching a RICO investigation into the Church in Pennsylvania. This will, no doubt, please those Catholics who were calling for greater state intervention into the Church in the wake of the latest abuse revelations. (For our part, we are far from sure that this will end as well as the voices calling for intervention think it will.) The American crisis follows on the heels of the protracted, frankly embarrassing affair in Chile.

One might say, perhaps not unreasonably, that the default position toward Francis in these circles is critical because there is so much to be critical about. However, it seems to us that a fundamental principle is lost when the default position toward Francis becomes one of criticism. Indeed, we might go so far as to say that there is an inversion of the right order of things when this is the case. Here we could discuss Thomas, who held that fraternal correction is a matter of virtue and therefore subject to all the requirements for any act of virtue. There have been magisterial interventions, both by the Plenary Councils of Baltimore and by Leo XIII, about the duties of Catholics commenting on current events. To our knowledge, no one has collected these interventions in one place for serious study. Hopefully someone more inclined to careful research and scholarship will do so.

But maybe they don’t have to.

It may not please Professor Vermeule to know that, in all of this, we are reminded of Blessed John Henry Newman, who, in a sermon preached October 7, 1866 (somewhat before Pius IX called the Vatican Council, when the infallibility debate reached its fever pitch), said:

[W]hat need I say more to measure our own duty to it and to him who sits in it, than to say that in his administration of Christ’s kingdom, in his religious acts, we must never oppose his will, or dispute his word, or criticise his policy, or shrink from his side? There are kings of the earth who have despotic authority, which their subjects obey indeed but disown in their hearts; but we must never murmur at that absolute rule which the Sovereign Pontiff has over us, because it is given to him by Christ, and, in obeying him, we are obeying his Lord. We must never suffer ourselves to doubt, that, in his government of the Church, he is guided by an intelligence more than human. His yoke is the yoke of Christ, he has the responsibility of his own acts, not we; and to his Lord must he render account, not to us. Even in secular matters it is ever safe to be on his side, dangerous to be on the side of his enemies. Our duty is,—not indeed to mix up Christ’s Vicar with this or that party of men, because he in his high station is above all parties,—but to look at his formal deeds, and to follow him whither he goeth, and never to desert him, however we may be tried, but to defend him at all hazards, and against all comers, as a son would a father, and as a wife a husband, knowing that his cause is the cause of God.

The whole sermon is well worth reading, not least because it treats at length of the Papal States and the union between the Church and state power. However, for our purposes the extract here is sufficient.

Recall also Newman’s so-called biglietto speech, given May 12, 1879, upon the formal notification that Pope Leo XIII, who had been elected pope just over a year before, had raised Newman to the dignity of cardinal of the Holy Roman Church. “For thirty, forty, fifty years I have resisted to the best of my powers the spirit of liberalism in religion.” Newman went on to say on that occasion,

Liberalism in religion is the doctrine that there is no positive truth in religion, but that one creed is as good as another, and this is the teaching which is gaining substance and force daily. It is inconsistent with any recognition of any religion, as true. It teaches that all are to be tolerated, for all are matters of opinion. Revealed religion is not a truth, but a sentiment and a taste; not an objective fact, not miraculous; and it is the right of each individual to make it say just what strikes his fancy.

Perhaps the current criticism of Francis is not quite Newman’s loathed liberalism in religion. However, it is not so far off as one might like to imagine. Certainly the right to express one’s opinions of Francis—good, bad, especially bad, or otherwise—is implicit in all of the criticism of Francis swirling today. Therefore, it seems to us that there is something profoundly illiberal in Newman’s insistence in 1866 that, in the pope’s religious acts, Catholics “must never oppose his will, or dispute his word, or criticise his policy, or shrink from his side.” This view rejects, fundamentally, that every opinion ought to be expressed. Indeed, it holds that basically no opinion ought to be expressed, except, of course, opinions supportive of the pope’s rule over the Church.

Consequently, Professor Vermeule’s position seems to us to be an entirely reasonable anti-liberal position. One of the leading opponents of liberalism of the 19th century adopted a position no less deferential to the pope than Vermeule’s apparent ultramontanism. Of course, there are other explanations, including the notion that Professor Vermeule does not think Francis is as disastrous as his critics do. But given his thorough anti-liberalism in other respects, it is at least plausible that his attitude toward the Pope is motivated by distrust and dislike for liberalism.

Dreher is not wrong when he notes a fundamental tension in this position; that is, Francis seems a committed partisan of political and theological liberalism and it therefore is bizarre to adopt an anti-liberal attitude toward criticizing him. This, we think, is a misreading of Francis’s pontificate. It is far from clear that Francis is the liberal that has been advertised. Certainly in political and environmental terms, he is no liberal. Indeed, as Rusty Reno noted, Francis is as suspicious of liberal modernity as Pius IX ever was. And there’s a case to be made that Francis thinks that liberal modernity has rendered us incapable of strenuous moral life. This is, in fact, far bleaker than anything Pius IX ever held. And it is, of course, debatable. Highly debatable.

Even if Francis is a liberal, it is far from clear to us that the proper response is liberalism. This, then, is the crux of the problem. Barring the Head of the Church returning, there will be other popes. Perhaps some will be, in the words of the great Louisiana philosopher and theologian I.J. Reilly, good authoritarian popes. Perhaps some will be liberals. However, the anti-liberal position works as well with a good authoritarian pope as it does with a liberal pope. Indeed, it works even better. And it has the advantage of avoiding a perpetual oscillation between ultramontanism and neo-Gallicanism.

A question about Holy Saturday

Historically, Easter had a first vespers, which was said after communion at the vigil Mass on Holy Saturday morning. If you have an old breviary lying around—who doesn’t?—you can find it. It consists of the antiphon Alleluia, alleluia, alleluia and Psalm 116, the antiphon Vespere autem sabbati and the Magnificat, and the postcommunion prayer Spiritum nobis. Following the prayer, the vigil Mass is then concluded with Ite, missa est, alleluia, alleluia. Gregory DiPippo explains that this form of the first vespers of Easter is likely of great antiquity. While the vigil Mass was said in the morning, it was still possible to have an evening service: one could anticipate matins and lauds of Easter. In other words, one was not necessarily done for the day after the vigil Mass.

All of this changed in 1955, however. Indeed, the changes of 1955 are most striking when considering Holy Saturday and the vigil of Easter. First, as everyone knows, the vigil of Easter was turned into an evening service. Evelyn Waugh had some pungent complaints about this, noting, quite reasonably, that the evening service is not really compatible with the orientation toward the dawn of Easter. (Even when many of the 1955 changes were dropped in the Novus Ordo, the Easter vigil remained an evening service, as you no doubt know.) For those who take part in the service, the vigil Mass takes the place of matins of Easter. (Bafflingly, some apparently believed that the prophecies in the vigil Mass were a kind of matins.) A truncated lauds along the lines of the old first vespers of Easter is inserted at the end of the Mass. A new vespers of Holy Saturday, along the lines of the vespers of Maundy Thursday and Good Friday, was created, and the compline of Maundy Thursday and Good Friday carried over. As DiPippo notes, this has some strange results. For one thing, it means Easter no longer has a first vespers. It also means that Holy Saturday’s vespers are not the first vespers of the following Sunday. For those in attendance at the vigil, it means that Easter does not have matins or a Te Deum, either.

However, one other curious result of the post-1955 rites stuck out to us: as far as we can tell, the only mandatory vespers of the Triduum under the post-1955 rites is vespers of Holy Saturday. Vespers of Maundy Thursday are not said by those who are present at the evening Mass, which would, we suspect, cover many bound to the recitation of the office. Likewise, vespers of Good Friday are not said by those who are present at the solemn postmeridian liturgical action (what used to be called the Mass of the Presanctified); again, most bound to the recitation of the office will be at the postmeridian action. However, there is no such rubric for Holy Saturday. In other words, the only truly obligatory vespers of the Triduum in the post-1955 rite is, as far as we can tell, vespers of Holy Saturday—the whole-cloth addition. At least so it seems by our reckoning. And while we can find our way around the breviary, we wonder if this can really be right—even if we suspect it is. If we’re wrong, feel free to shoot us a note and explain where we came off the tracks.

What, then, does Cardinal Cupich mean?

In a recent talk at St. Edmund College, Cambridge, discussing paradigm shifts and hermeneutics implemented by Francis by means of Amoris laetitia, Blase Cardinal Cupich, archbishop of Chicago, stated:

The starting point for the role of conscience in the new hermeneutic is Gaudium et Spes 16 (2), which identifies conscience as “the most secret core and sanctuary of a man…(where) he is alone with God, Whose voice echoes in his depths.” When taken seriously, this definition demands a profound respect for the discernment of married couples and families. Their decisions of conscience represent God’s personal guidance for the particularities of their lives. In other words, the voice of conscience—the voice of God— or if I may be permitted to quote an Oxford man here at Cambridge, what Newman called “the aboriginal vicar of Christ”—could very well affirm the necessity of living at some distance from the Church’s understanding of the ideal, while nevertheless calling a person “to new stages of growth and to new decisions which can enable the ideal to be more fully realized” (AL 303).

(Emphasis supplied.) The entire talk is well worth reading, if only to see what a prelate widely seen as an influential American squarely aligned with Francis thinks about Amoris laetitia and its implementation. Other American prelates have disagreed, and it is unclear, especially considering recent votes by the USCCB, that Cupich’s views have wide currency among American bishops.

Nevertheless, this is plainly a major address and it has been promoted as such by members of the Pope’s party in the media. Were it not that Francis is currently embroiled in a very serious controversy regarding Bishop Barros of Osorno, Chile, and a letter allegedly presented to Francis by no less an authority than Cardinal O’Malley of Boston, one imagines that Cupich’s talk would receive much more coverage. But Cupich’s talk deserves some attention, not least for the passage quoted above, which implicates Bl. John Henry Newman in Cupich’s understanding of conscience. We shall see that Newman probably does not provide the support Cupich would like for his view of conscience.

First of all, we think it is fairly obvious that Cardinal Cupich intends to invoke Newman’s authority in support of his argument. Fr. John Hunwicke has identified a sort of clever usage here: Cardinal Cupich implies, but never asserts, that Cardinal Newman would have supported the proposition that conscience “could very well affirm the necessity of living at some distance from the Church’s understanding of the ideal.” Now, taken word by word: Cupich never says that Newman said what Cupich says. He never says that Newman understood conscience as a sort of get-out-of-sin-free card or an exception to any ecclesiastical rule or point of doctrine. Nevertheless, Fr. Hunwicke is quite right: to drop the quotation of Newman in the middle of that sentence makes it appear as though Newman would have somehow agreed with Cupich’s understanding of conscience. To determine whether or not this is the case, we must explore Newman’s writings in some detail.

The phrase “the aboriginal vicar of Christ” comes from Newman’s letter to the Duke of Norfolk, and it comes at the end of a long passage where Newman sets forth the Catholic understanding of conscience. The passage—though lengthy—is well worth considering in full:

I say, then, that the Supreme Being is of a certain character, which, expressed in human language, we call ethical. He has the attributes of justice, truth, wisdom, sanctity, benevolence and mercy, as eternal characteristics in His nature, the very Law of His being, identical with Himself; and next, when He became Creator, He implanted this Law, which is Himself, in the intelligence of all His rational creatures. The Divine Law, then, is the rule of ethical truth, the standard of right and wrong, a sovereign, irreversible, absolute authority in the presence of men and Angels. “The eternal law,” says St. Augustine, “is the Divine Reason or Will of God, commanding {247} the observance, forbidding the disturbance, of the natural order of things.” “The natural law,” says St. Thomas, “is an impression of the Divine Light in us, a participation of the eternal law in the rational creature.” (Gousset, Theol. Moral., t. i. pp. 24, &c.) This law, as apprehended in the minds of individual men, is called “conscience;” and though it may suffer refraction in passing into the intellectual medium of each, it is not therefore so affected as to lose its character of being the Divine Law, but still has, as such, the prerogative of commanding obedience. “The Divine Law,” says Cardinal Gousset, “is the supreme rule of actions; our thoughts, desires, words, acts, all that man is, is subject to the domain of the law of God; and this law is the rule of our conduct by means of our conscience. Hence it is never lawful to go against our conscience; as the fourth Lateran Council says, ‘Quidquid fit contra conscientiam, ædificat ad gehennam.'”

This view of conscience, I know, is very different from that ordinarily taken of it, both by the science and literature, and by the public opinion, of this day. It is founded on the doctrine that conscience is the voice of God, whereas it is fashionable on all hands now to consider it in one way or another a creation of man. Of course, there are great and broad exceptions to this statement. It is not true of many or most religious bodies of men; especially not of their teachers and ministers. When Anglicans, Wesleyans, the various Presbyterian sects in Scotland, and other denominations among us, speak of conscience, they mean what we mean, the voice of God in the nature and heart of man, as distinct from the voice of Revelation. They speak of a principle planted within us, before we have had any training, although training and experience are necessary for its strength, growth, and due formation. They consider it a constituent element of the mind, as our perception of other ideas may be, as our powers of reasoning, as our sense of order and the beautiful, and our other intellectual endowments. They consider it, as Catholics consider it, to be the internal witness of both the existence and the law of God. They think it holds of God, and not of man, as an Angel walking on the earth would be no citizen or dependent of the Civil Power. They would not allow, any more than we do, that it could be resolved into any combination of principles in our nature, more elementary than itself; nay, though it may be called, and is, a law of the mind, they would not grant that it was nothing more; I mean, that it was not a dictate, nor conveyed the notion of responsibility, of duty, of a threat and a promise, with a vividness which discriminated it from all other constituents of our nature.

This, at least, is how I read the doctrine of Protestants as well as of Catholics. The rule and measure of duty is not utility, nor expedience, nor the happiness of the greatest number, nor State convenience, nor fitness, order, and the pulchrum. Conscience is not a long-sighted selfishness, nor a desire to be consistent with oneself; but it is a messenger from Him, who, both in nature and in grace, speaks to us behind a veil, and teaches and rules us by His representatives. Conscience is the aboriginal Vicar of Christ, a prophet in its informations, a monarch in its peremptoriness, a priest in its blessings and anathemas, and, even though the eternal priesthood throughout the Church could cease to be, in it the sacerdotal principle would remain and would have a sway.

(Emphasis supplied.) When Newman says that “conscience is the aboriginal Vicar of Christ,” he means it literally. Conscience is an individual’s apprehension of the divine law, and, according to Newman, never suffers enough in the apprehension of the individual to lose its character. That is, conscience will always be the voice of God and must always be obeyed as such.

Taken in one way, Cardinal Cupich appears to assert that God can be set at odds with His Church. Of course, one cannot believe that a bishop and a cardinal of the Holy Roman Church would make such a startling assertion, even if it is popular with protestants and progressives. Nevertheless, taking Newman’s understanding of conscience, to which Cupich refers specifically, if somewhat ambiguously, in his remarks, it is hard to see what Cupich is driving at. One therefore wishes to ask, perhaps somewhat less polemically than Charles Kingsley, what, then, does Cardinal Cupich mean? Let’s see what we mean.

First, Cardinal Cupich recognizes that conscience is identical with the voice of God, as Newman says. Cupich asserts that the voice of God “could very well affirm the necessity of living at some distance from the Church’s understanding of the ideal.” Taken in its literal sense, this is extraordinary: the voice of God could “affirm the necessity” of failing to follow the teachings of the Church. Of course, Cupich neglects to note that “when He became Creator, He implanted this Law, which is Himself, in the intelligence of all His rational creatures. The Divine Law, then, is the rule of ethical truth, the standard of right and wrong, a sovereign, irreversible, absolute authority in the presence of men and Angels.” It is the apprehension of this law that is conscience. This is perhaps the most serious ambiguity. If Cupich accepts the identity of conscience with the divine law, then he asserts here that the divine law, apprehended by man, can “affirm the necessity” of resisting the teachings of the Church.

Recall what Pius XII said in Mystici Corporis Christi:

Because Christ is so exalted, He alone by every right rules and governs the Church; and herein is yet another reason why He must be likened to a head. As the head is the “royal citadel” of the body—to use the words of Ambrose—and all the members over whom it is placed for their good are naturally guided by it as being endowed with superior powers, so the Divine Redeemer holds the helm of the universal Christian community and directs its course. And as to govern human society signifies to lead men to the end proposed by means that are expedient, just and helpful, it is easy to see how our Savior, model and ideal of good Shepherds, performs all these functions in a most striking way.

While still on earth, He instructed us by precept, counsel and warning in words that shall never pass away, and will be spirit and life to all men of all times. Moreover He conferred a triple power on His Apostles and their successors, to teach, to govern, to lead men to holiness, making this power, defined by special ordinances, rights and obligations, the fundamental law of the whole Church.

(Emphasis supplied.) In other words, Christ, the head of the Church, the sole ruler and governor of the Church, conferred upon the hierarchy, beginning with the Apostles and continuing down to the present day, “a triple power . . . to teach, to govern, to lead men to holiness.” When the Church, in Cardinal Cupich’s words, proclaims its understanding of an ideal, it is exercising this triple power, granted by Christ.

Consequently, it appears that Cardinal Cupich comes awfully close to asserting—presuming an understanding of conscience consistent with Cardinal Newman’s—that the divine law, implanted in each man by God, can permit individuals to act contrary to the teaching of the Church, established and ruled by God, who has given to the hierarchy the powers of teaching and sanctifying. While we are confident that Cardinal Cupich did not mean to set God against His Church by means of conscience, we are afraid that some readers, unschooled in theological controversy, may mistake his meaning and see in his words such an implication. And we admit that, having brought Cardinal Newman’s understanding of conscience into his remarks, one could fairly assume that Cupich meant to adopt Newman’s understanding as his own. The conflict between God and His Church in Cupich’s remarks follows from this understanding; therefore, one wishes that Cardinal Cupich would clarify his meaning.

A clever interlocutor—and the supporters of Amoris laetitia have shown themselves to be extremely clever if nothing else—might object and say that we have ignored an important point in Newman’s discussion of conscience. He might say that Newman acknowledged the possibility of a conflict between conscience and purely ecclesiastical laws. He might say that we are being unjust to Cardinal Cupich, whose meaning can be derived in greater detail from Newman’s own analysis of the potential conflict between conscience and ecclesiastical law. Indeed, our clever interlocutor might say that Cupich’s meaning is entirely clear if one considers Newman’s argument. This may be true. Let us consider, therefore, what Newman says:

But, of course, I have to say again, lest I should be misunderstood, that when I speak of Conscience, I mean conscience truly so called. When it has the right of opposing the supreme, though not infallible Authority of the Pope, it must be something more than that miserable counterfeit which, as I have said above, now goes by the name. If in a particular case it is to be taken as a sacred and sovereign monitor, its dictate, in order to prevail against the voice of the Pope, must follow upon serious thought, prayer, and all available means of arriving at a right judgment on the matter in question. And further, obedience to the Pope is what is called “in possession;” that is, the onus probandi of establishing a case against him lies, as in all cases of exception, on the side of conscience. Unless a man is able to say to himself, as in the Presence of God, that he must not, and dare not, act upon the Papal injunction, he is bound to obey it, and would commit a great sin in disobeying it. Primâ facie it is his bounden duty, even from a sentiment of loyalty, to believe the Pope right and to act accordingly. He must vanquish that mean, ungenerous, selfish, vulgar spirit of his nature, which, at the very first rumour of a command, places itself in opposition to the Superior who gives it, asks itself whether he is not exceeding his right, and rejoices, in a moral and practical matter to commence with scepticism. He must have no wilful determination to exercise a right of thinking, saying, doing just what he pleases, the question of truth and falsehood, right and wrong, the duty if possible of obedience, the love of speaking as his Head speaks, and of standing in all cases on his Head’s side, being simply discarded. If this necessary rule were observed, collisions between the Pope’s authority and the authority of conscience would be very rare. On the other hand, in the fact that, after all, in extraordinary cases, the conscience of each individual is free, we have a safeguard and security, were security necessary (which is a most gratuitous supposition), that no Pope ever will be able, as the objection supposes, to create a false conscience for his own ends.

(Emphasis supplied.) First of all, some context. Newman begins this argument by observing “that, conscience being a practical dictate, a collision is possible between it and the Pope’s authority only when the Pope legislates, or gives particular orders, and the like. But a Pope is not infallible in his laws, nor in his commands, nor in his acts of state, nor in his administration, nor in his public policy.” It is not clear that when the Church proposes an ideal, in Cardinal Cupich’s terms, relating to the moral law, that there is the same possibility of collision. Still less is it clear that when the Church repeats what Our Lord said in the Gospel—as is the case with the question of divorce and remarriage—that there can be the possibility of collision.

Second of all, as we have noted before, Newman rejects an understanding of conscience as mere self-will. This is the “miserable counterfeit” of conscience Newman excludes from consideration in the context of a collision between conscience and ecclesiastical authority. In rejecting this understanding, Newman sets forth the important principle—a maxim, if you prefer—that “conscience has rights because it has duties”:

So much for philosophers; now let us see what is the notion of conscience in this day in the popular mind. There, no more than in the intellectual world, does “conscience” retain the old, true, Catholic meaning of the word. There too the idea, the presence of a Moral Governor is far away from the use of it, frequent and emphatic as that use of it is. When men advocate the rights of conscience, they in no sense mean the rights of the Creator, nor the duty to Him, in thought and deed, of the creature; but the right of thinking, speaking, writing, and acting, according to their judgment or their humour, without any thought of God at all. They do not even pretend to go by any moral rule, but they demand, what they think is an Englishman’s prerogative, for each to be his own master in all things, and to profess what he pleases, asking no one’s leave, and accounting priest or preacher, speaker or writer, unutterably impertinent, who dares to say a word against his going to perdition, if he like it, in his own way. Conscience has rights because it has duties; but in this age, with a large portion of the public, it is the very right and freedom of conscience to dispense with conscience, to ignore a Lawgiver and Judge, to be independent of unseen obligations. It becomes a licence to take up any or no religion, to take up this or that and let it go again, to go to church, to go to chapel, to boast of being above all religions and to be an impartial critic of each of them. Conscience is a stern monitor, but in this century it has been superseded by a counterfeit, which the eighteen centuries prior to it never heard of, and could not have mistaken for it, if they had. It is the right of self-will.

(Emphasis supplied.) In other words, “the right of thinking, speaking, writing, and acting, according to their judgment or their humour, without any thought of God at all” cannot excuse one from obedience to the pope. Why not? Because it is not conscience. Therefore, if, by conscience, one uses this popular understanding, one can never justify, no matter how skillfully the argument is laid out, disobedience to ecclesiastical authority, to say nothing of disobedience on a point of considerable importance, such as this one.

Additionally, in the note on liberalism to Newman’s Apologia pro Vita Sua, we learn that Newman—as a protestant—”denounced and abjured” the proposition that “There are rights of conscience such, that every one may lawfully advance a claim to profess and teach what is false and wrong in matters, religious, social, and moral, provided that to his private conscience it seems absolutely true and right.”

To return to the main question: assuming, without granting, that the moral and ethical teachings of the Church fall into the category of acts discussed by Newman, we see that Newman proposes an extremely rigorous process for a conscience to claim the right of resistance. “If in a particular case it is to be taken as a sacred and sovereign monitor, its dictate, in order to prevail against the voice of the Pope, must follow upon serious thought, prayer, and all available means of arriving at a right judgment on the matter in question.” Moreover, the burden of proof, the onus probandi, is always with conscience: that is, if one believes one’s conscience requires resistance, one has the duty either to make out a case against obedience or to obey. The commands of the Pope do not have a burden of proof; that is, it is enough that the Pope issues them. Additionally, Newman recognizes that there may be an initial inclination to disobedience, which must be addressed squarely and rigorously. “He must vanquish that mean, ungenerous, selfish, vulgar spirit of his nature, which, at the very first rumour of a command, places itself in opposition to the Superior who gives it, asks itself whether he is not exceeding his right, and rejoices, in a moral and practical matter to commence with scepticism.” The process of justifiable resistance, in Newman’s terms, is arduous. It is not enough to invoke immediately—without serious thought, prayer, and an exhaustive effort of arriving at a right judgment—conscience and thereby claim the right to resist the Pope’s teaching.

Perhaps this is what Cardinal Cupich means. That is, perhaps he means that, for the divorced-and-remarried who wish to defy the teaching of John Paul II in Familiaris consortio and Benedict XVI in Sacramentum caritatis—that is, the teaching that they must live as brother and sister in order to be free to approach communion—upon the invocation of conscience, the process is long and difficult. The bigamists must engage in serious thought, prayer, and formation through “all available means” of a right judgment. They must “vanquish that mean, ungenerous, selfish, vulgar spirit” of their nature that rebels against commands from superiors. They must have no hint of self-will, and they must understand that the burden is on them and the presumption on the side of John Paul and Benedict and the teaching of the Church from the time of Christ Himself. Only when they are “able to say to ‘themselves,’ as in the Presence of God, that they must not, and dare not” follow the decrees of John Paul II and Benedict XVI, Cardinal Cupich may be saying, may they invoke conscience as a basis to live more uxorio in a bigamous second marriage. Such a rigorous interpretation of Amoris laetitia would put Cardinal Cupich in an extreme camp. Few prelates, if this is indeed what Cardinal Cupich means, have expressed such a rigorous view.

We are left therefore where we were a few minutes ago. What does Cardinal Cupich mean when he says that conscience “could very well affirm the necessity of living at some distance from the Church’s understanding of the ideal”? Does he mean to say that conscience sets God at odds with His Church in individual cases? We cannot believe that a cardinal would make such a bold—and boldly un-Catholic—statement, but, if he means to ratify Newman’s understanding of conscience and not the “miserable counterfeit” resisted by Newman, his meaning is unclear to a great extent. On the other hand, does he mean to follow Newman in holding that conscience may resist a decree of the Pope if, after the most arduous process of purification, education, and proof, conscience determines it is necessary? Such a view would turn the pastoral emphasis of Amoris laetitia into an austere rule leading to careful theological argumentation. Perhaps this is what Cardinal Cupich means to endorse. But if this is the case, we admit frankly being confused by the Pope’s friends’ endorsement of Cardinal Cupich’s talk. It is so far removed from their understanding of Amoris laetitia to be altogether more like the arguments of Cardinal Burke or Bishop Athanasius Schneider than those of Cardinal Schönborn or Rocco Buttiglione.

Puzzlin’ Evidence

One of our favorite scenes in David Byrne’s (sort of uneven) 1986 film True Stories is the scene where the preacher, played perfectly by John Ingle, begins spooling out an entirely secular web of conspiracy theories. Ingle’s preacher hits every note of the 1980s evangelical preacher as he sings “Puzzlin’ Evidence.” It is a shame that the album version of “Puzzlin’ Evidence” on the True Stories soundtrack is a version by Talking Heads with vocals by David Byrne. Whatever Byrne’s talents as a vocalist, he does not bring the same rollicking style to “Puzzlin’ Evidence” that Ingle did. At any rate, we could not help but think of “Puzzlin’ Evidence” as we saw some of the reactions to Fr. Romanus Cessario’s very fine piece in First Things about the Mortara case.

Princeton professor Robert George, one of the grand old men of the interfaith coalition of neoconservatives, reacted to Cessario’s piece with horror. On Twitter and Facebook he decried the very idea of baptizing a child against the will of his or her parents as “an unspeakable injustice,” condemned by no less an authority than Thomas Aquinas. Somewhat surprisingly, George does not note that the current canon law of the Church, promulgated by St. John Paul II in 1983, notes that an infant—whether the child of Catholic parents or non-Catholic parents; it does not matter—in danger of death is baptized licitly even against the will of his parents (can. 868 § 2). The same code states that a child in danger of death “is to be baptized without delay” (can. 867 § 2). This, by the way, was the law under the 1917 Code, which clearly authorized baptism even of the children of non-Christians in danger of death (1917 can. 750 § 1). By the way, did you know that pastors have long been supposed to teach their subjects the correct way to baptize, in case of emergencies (can. 861 § 2; 1917 can. 743)? Stop for a moment and think about this: the law of the Church practically directs the faithful to baptize infants in danger of death notwithstanding any objections by their parents, and it commands pastors to make sure that the faithful know how to do this. Despite this clear teaching, George calls the baptism of Edgardo Mortara “an unspeakable injustice.” Does George really mean to say that the law of the Church for the past century, if not longer, constitutes an unspeakable injustice?

Plenty of the responses to George have happily pointed this out. One might also ask George what he thinks Matthew 28:19 means, to say nothing of the canons of the seventh session of the Council of Trent (March 3, 1547). We wish to emphasize another point, however, which might be overlooked otherwise. We come to the puzzling evidence.

In George’s haste to decry the baptism of Edgardo Mortara as “an unspeakable injustice,” he echoes some of the most vicious modern critics of the Church. In his (revolting and revoltingly titled) attack on Mother Teresa, Christopher Hitchens cited Teresa’s order’s practice of baptizing the dying as evidence of her “hypocrisy.” Nothing, of course, could be further from the truth: the saint consistently baptized those persons in her care. Fr. Leo Maasburg recounts that in Communist Armenia—where baptism was by no means a risk-free proposition for anyone—a hospital under Mother Teresa’s direction made sure that children (and some adults) dying were baptized. Nevertheless, the entirely true allegation that Mother Teresa baptized the dying has become one of the favorite slurs of the secularists against the Saint. In a review of Hitchens’s book for the New York Review of Books, Murray Kempton gleefully took up the charge. Indeed, Kempton is spurred to heights of fury rarely seen even in the explosive pages of the NYRB by the idea that an Albanian nun might want to succor the dying spiritually. The charge that Teresa baptized the dying remains one of the more popular charges, even twenty-some years after Hitchens’s book: Michael Stone, writing at Patheos in 2016, found nothing but horror in the idea that Teresa might baptize the dying.

Is there really any difference between George’s language regarding the Mortara case and the savage polemics directed at Mother Teresa? Is there any difference, really, between the spirit of George’s frantic denunciation and the lacerating blows directed at the Albanian saint? George calls the baptism of Edgardo Mortara and its consequences “an abomination” and “an unspeakable injustice.” Hitchens calls the baptism of many of Teresa’s patients a “hypocrisy.” Murray Kempton calls her baptisms “tickets of admission contrived in stealth and sealed with a fraudulent stamp.” And the Patheos blogger called them examples of “her moral corruption, and her callous attitude toward the sick and dying in her care . . . .” He goes on to call this “[t]he stuff of horror movies.” Surely George does not mean to indict Mother Teresa in the same terms that her most hateful critics have used! Surely he would find some way to distinguish his outrage over Romanus Cessario’s mild, intelligent defense of Pius IX from the gleeful, spiteful attacks of Christopher Hitchens and Murray Kempton! But try to think how you can indict Pius IX and exonerate Teresa. Try to think how you can distinguish contempt for Pius IX and Cessario’s argument from contempt for St. Teresa of Calcutta.

Harder than it looks, isn’t it?

Abhinc duos annos

Dear Reader:

October 4th—the greater double feast of St. Francis, a fact which has escaped us until this moment—is the anniversary of Semiduplex. Last year, we wrote a fairly lengthy post reflecting upon the past year. We will spare you a similar post. Instead, we will simply thank you for your time and attention.

Yours very truly,

P.J. SMITH

Pius IX and the ecclesiology of Twitter

We heard today that roving gangs of cyber-bullying Catholics are a problem in terms of the institutional Church. Indeed, we heard today that this has ecclesiological consequences. Even assuming that this is not the continuation of a Twitter beef in highfalutin terms, an assumption we ourselves would not readily make, the assertion is a little silly. (The author mostly seems to complain about anyone interested in orthodoxy qua orthodoxy, since he also complains about the Holy Office in the 1950s under the great Cardinal Ottaviani.) In this context, Pius IX’s 1863 Letter to Archbishop von Döllinger of Munich, Tuas libenter, makes an extraordinarily interesting point:

Dum vero debitas illis deferimus laudes, quod professi sint veritatem, quae ex catholicae fidei obligatione necessario oritur, persuadere Nobis volumus, noluisse obligationem, qua catholici Magistri ac Scriptores omnino adstringuntur, coarctare in iis tantum, quae ab infallibili Ecclesiae iudicio veluti fidei dogmata ab omnibus credenda proponuntur. Atque etiam Nobis persuademus, ipsos noluisse declarare, perfectam illam erga revelatas veritates adhaesionem, quam agnoverunt necessariam omnino esse ad verum scientiarum progressum assequendum et ad errores confutandos, obtineri posse, si dumtaxat Dogmatibus ab Ecclesia expresse definitis fides et obsequium adhibeatur. Namque etiamsi ageretur de illa subiectione, quae fidei divinae actu est praestanda, limitanda tamen non esset ad ea, quae expressis, oecumenicorum Conciliorum aut Romanorum Pontificum, huiusque Apostolicae Sedis decretis definita sunt, sed ad ea quoque extendenda quae ordinario totius Ecclesiae per orbem dispersae magisterio tanquam divinitus revelata traduntur, ideoque universali et constanti consensu a catholicis Theologis ad fidem pertinere retinentur.

(Emphasis supplied.) A translation may be found at DH 2879. The Second Vatican Council cites Tuas libenter in a note to Lumen gentium 25. We would also direct the interested reader to Ford and Grisez’s 1978 essay, Contraception and the Infallibility of the Ordinary Magisterium, pages 274 and 275.

Food for thought, no?

 

Pius IX would like to speak to your manager

It is greatly gratifying to see Catholics—especially those who profess themselves to be good liberals and good Catholics—discovering the phenomenon of getting people fired (or in trouble) for things they say on social media. Formerly liberal Catholics on the right and the left are turning each other in to their employers for expressing bad—heterodox, even—opinions. Some campaigns have even been successful, getting speaking invitations revoked and some people fired. We have often spoken of the current moment as the moment for illiberal Catholicism. We confess that, while we are sorry that some people have suffered serious professional setbacks, we are happy to see so many Catholics returning, after so long in the liberal wilderness, to the traditional teaching of the Church on the so-called freedom of speech. And we are as hopeful as we have ever been that Catholics will again unite in support of truth and the common good against the liberals and their cherished license.

At long last, Catholics are recalling that Pius IX condemned, in his allocution Numquam fore, collected in Syllabus (p. 156 in this collection of the sources of Syllabus), the proposition that “it is false that the civil liberty of every form of worship, and the full power, given to all, of overtly and publicly manifesting any opinions whatsoever and thoughts, conduce more easily to corrupt the morals and minds of the people, and to propagate the pest of indifferentism.” At long last, there is a recognition that it is by no means acceptable to “overtly and publicly manifest[] any opinions whatsoever,” and that some views do in fact “conduce more easily to corrupt the morals and minds of the people.” It is immaterial that these Catholics take private steps to punish the speakers privately, for the basic principle is the same, whether it is the government taking action to silence speakers or private citizens.

Recall also what Leo XIII said in Libertas praestantissimum:

We must now consider briefly liberty of speech, and liberty of the press. It is hardly necessary to say that there can be no such right as this, if it be not used in moderation, and if it pass beyond the bounds and end of all true liberty. For right is a moral power which—as We have before said and must again and again repeat—it is absurd to suppose that nature has accorded indifferently to truth and falsehood, to justice and injustice. Men have a right freely and prudently to propagate throughout the State what things soever are true and honorable, so that as many as possible may possess them; but lying opinions, than which no mental plague is greater, and vices which corrupt the heart and moral life should be diligently repressed by public authority, lest they insidiously work the ruin of the State. The excesses of an unbridled intellect, which unfailingly end in the oppression of the untutored multitude, are no less rightly controlled by the authority of the law than are the injuries inflicted by violence upon the weak. And this all the more surely, because by far the greater part of the community is either absolutely unable, or able only with great difficulty, to escape from illusions and deceitful subtleties, especially such as flatter the passions. If unbridled license of speech and of writing be granted to all, nothing will remain sacred and inviolate; even the highest and truest mandates of natures, justly held to be the common and noblest heritage of the human race, will not be spared. Thus, truth being gradually obscured by darkness, pernicious and manifold error, as too often happens, will easily prevail. Thus, too, license will gain what liberty loses; for liberty will ever be more free and secure in proportion as license is kept in fuller restraint. In regard, however, to all matter of opinion which God leaves to man’s free discussion, full liberty of thought and of speech is naturally within the right of everyone; for such liberty never leads men to suppress the truth, but often to discover it and make it known.

(Emphasis supplied.) To complain to the employer of one who expresses these bad views is, therefore, to vindicate one’s responsibility for the common good and the truth by driving the person from the public square. It is to recognize that the liberal state has abdicated an important responsibility—to protect the “untutored multitude” from “lying opinions” and “vices which corrupt the heart and moral life”—and to take up that responsibility, even if only in a small way in the name of true liberty, not liberal license.

Can the reformation of the state along truly Catholic lines now be far off? Now that even the formerly liberal Catholics acknowledge that some opinions ought not to be tolerated, even in the liberal state, can the false idol of tolerance be long for this world? The former liberals must acknowledge, if they are truly motivated by a love of the truth, and not merely seeking to advance their party spirit in a new forum, that the toleration of bad opinions by the liberal state is a grave fault of the liberal state. Again Leo:

But, to judge aright, we must acknowledge that, the more a State is driven to tolerate evil, the further is it from perfection; and that the tolerance of evil which is dictated by political prudence should be strictly confined to the limits which its justifying cause, the public welfare, requires. Wherefore, if such tolerance would be injurious to the public welfare, and entail greater evils on the State, it would not be lawful; for in such case the motive of good is wanting. And although in the extraordinary condition of these times the Church usually acquiesces in certain modern liberties, not because she prefers them in themselves, but because she judges it expedient to permit them, she would in happier times exercise her own liberty; and, by persuasion, exhortation, and entreaty would endeavor, as she is bound, to fulfill the duty assigned to her by God of providing for the eternal salvation of mankind. One thing, however, remains always true—that the liberty which is claimed for all to do all things is not, as We have often said, of itself desirable, inasmuch as it is contrary to reason that error and truth should have equal rights.

(Emphasis supplied.) Now that they admit that some opinions ought not to receive a hearing, surely they shall join their integralist brethren in agitating for a new constitution of the state, reflecting the truth that license is not liberty and toleration is no virtue when it harms the common good.