An Essay on Christian Constitutionalism: Building in the Divine Style, for the Common Good(s)
63 Pages Posted: 2 Sep 2015 Last revised: 6 Oct 2015
Date Written: March 1, 2015
Theocracy is a matter of growing global concern and therefore of renewed academic interest. This paper answers the following question: "What would a Christian constitution, in a predominantly Christian nation, look like?" The paper was prepared for presentation as the Clark Lecture at Rutgers School of Law (Camden), where papers answering the same question with respect to Jewish and Islamic constitutions and cultures, respectively, were also presented.
A Christian constitution would not have as its aim the comparatively anodyne -- and ultimately futile -- business of introducing more "Judeo-Christian values" into the life of the typical nation state. The paper argues that the question presented -- "a Christian constitution" for "a predominantly Christian nation" -- cannot be answered adequately while assuming that the intended project concerns either a "state" in the usual modern sense of the term or a "constitution" in the narrow sense usually used to refer to a nation-state's foundational written document (perhaps in conjunction with its interpretive case law). Instead, the paper argues, the Catholic (not generically Christian) understanding of the demands of divine law (both natural and positive) requires the creation of constitutive documents, institutions, and practices that will have as their aim to create and sustain a commonwealth that creates, entrenches, and sustains the conditions of the common good, that is, the virtuous life of the whole. The paper argues, further, that this will require making the Catholic religion the religion of the state; tolerating practice of other religions so long as such practice does not endanger the common good; and creating lawmaking and enforcing institutions that respect that the supreme law of the land is higher law, never human positive law.
The paper refutes the modern argument according to which "because the state can know nothing of religion, religion must be private." A Christian constitution will be born from a Christian nation's acknowledgment of its socio-political, and not merely private, obligations to honor the rights of God. As recent experience in the U.S. demonstrates, "the liberty of the Church" proves to be an insufficient juridical category for satisfying even many of the most basic obligations of Catholics (and some other Christians) to practice their faith in its fullness. A Christian constitution will ensure the proper cooperation between the two powers, Church and state, in service of the unity of the social order and of its ultimate end in God.
Keywords: constitutional, constitutionalism, state, civil society, church, commonwealth, common good, religion, Christianity, establishment, separation, cooperation, conscience, tolerance, lawmaking, equity, prudence, art, natural law, natural law, rights, rights of God, social justice, subsidiarity, theocrac
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