The Freedom of the Church

Journal of Catholic Social Thought, Vol. 4, 2007

Notre Dame Legal Studies Paper No. 06-12

25 Pages Posted: 17 Jul 2006  

Richard W. Garnett

Notre Dame Law School

Abstract

This Article focuses on what the American theologian and Jesuit John Courtney Murray called a Great Idea, whose entrance into history marked the beginning of a new civilizational era. That idea was libertas ecclesiae, or the freedom of the Church. It served, according to Harold Berman, as the catalyst for the first major turning point in European history and as the foundation for nearly a millennium of political theory. And, this Article suggests, it remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government.

It is tempting to assume or expect that such a great idea must be deeply rooted and comfortably well established in our Constitution's text, history, structure, and doctrine. However, this Article suggests that there might not be, in American constitutional law, a commitment to - or even room for - the libertas ecclesiae principle, richly understood. Instead, it could be that we are living off the capital of this idea - that is, we enjoy, embrace, and depend upon its freedom-enabling effects - without a real appreciation for or even a memory of what it is, implies, and presumes. In our religious-freedom doctrines and conversations, it is more likely that the independence and autonomy of churches, or of religious institutions and associations generally, are framed as deriving from, or existing in the service of, the free-exercise or conscience rights of individual persons than as providing the basis or foundation for those rights. Accordingly, this Article considers Murray's warning that the individual conscience is not equal to the burden of being the keystone of the modern experiment in freedom.

Keywords: First Amendment, Religious freedom, church and state, church autonomy, Establishment Clause, expressive association, John Courtney Murray

JEL Classification: K10, K19

Suggested Citation

Garnett, Richard W., The Freedom of the Church. Journal of Catholic Social Thought, Vol. 4, 2007; Notre Dame Legal Studies Paper No. 06-12. Available at SSRN: https://ssrn.com/abstract=916336

Richard W. Garnett (Contact Author)

Notre Dame Law School ( email )

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