Lex Et Ratio - We Hold These Truths

• Publication year: 2005
• Citation: Vol. 2005 No. 12

Vermont Bar Journal 2005.

December 2005b - #5. LEX ET RATIO - WE HOLD THESE TRUTHS

THE VERMONT BAR JOURNAL

#164, December, 2005, Volume 31, No. 4

LEX ET RATIO - WE HOLD THESE TRUTHS

by Kevin F. Ryan, Esq.

In 1960, John Courtney Murray, a Jesuit priest and scholar published a collection of essays entitled We Hold These Truths: Catholic Reflections on the American Proposition.1 Murray wrote in part to counter anti-Catholic notions that adherents of the Roman Church offered their primary allegiance to the Pope and therefore could not be trusted to be loyal citizens of the United States.2 But Murray's main interest was not so much controversial as it was elucidative. He sought to unearth the fundamental truths upon which our nation was founded - the body of beliefs that formed what he called the "American consensus" - and he did so at a time when the consensus seemed to be dissipating.3 In Murray's view, the consensus of truths upon which the Founders built a new nation had begun to whither before the rise of pluralism, secularism, and a bland indifference to higher things. He warned that the demise of the consensus threatened the future well-being of the nation In short, his book was a call to rediscover and reaffirm the truths we hold as Americans in order to foster the common good

The end of the Cold War did not bring the end of history as some had predicted.4 Instead, the death of the Communist alternative has had the ironic effect of weakening the American consensus, much as the alleged "end of ideology" did in Murray's day. We live today in a time when fundamental American principles are touted, rather aggressively, at home and abroad. But, ironically, it is also a time when those principles, obscured by a haze of rhetoric, command decreasing allegiance among political leaders, intellectuals, and ordinary citizens. On the surface the principles upon which our nation was founded appear strong and vibrant; but under the skin, they are being eaten away. Murray's insights into the truths we profess, and the threats to them, provide a vehicle for examining the life we live together today as citizens of the United States. In this and subsequent essays, I want to re-discover - and reclaim - the American constitutional consensus.

___A Constitutional Consensus___

A people acquires its identity and sense of purpose as a people through a basic constitutional consensus.5 "Constitutional" here refers not to a written document so much as it does to those cultural factors binding a political society together, creating the character of the nation. Lord Bolingbroke defined a constitution as "that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed."6 A constitutional consensus reaches beyond the law and institutions to the justifying principles of reason, to the fundamental beliefs upon which the political and legal framework of a nation rest. The idea that social order rests on such a shared set of views, principles, and beliefs has roots deep in the past of political philosophy, in the writings of Plato, Aristotle, Cicero, and early Christian thinkers such as St. Augustine. A constitutional consensus - a body of truths we hold as a nation - makes us who we are, distinguishing us from other peoples, and defining the broad purposes of our nation. Further, the consensus furnishes the standards according to which not only the institutions of, but also the policies pursued by, government can be evaluated. As Lord Bolingbroke saw, those standards include both national purposes and shared fundamental beliefs: "[w]e call this a good government, when . . . the whole administration of public affairs is wisely pursued, and with a strict conformity to the principles and objects of the constitution."7 Precisely because it stands outside of policy, providing a means by which to test the ends of government against basic principles, the consensus becomes the ground on which communication between government and the people, and among the people themselves, can and should occur. It offers a common universe of discourse in which public issues can be intelligibly stated and intelligently debated.

Such a consensus cannot be created artificially and does not spring fully formed out of nowhere. It cannot be created, for example, by drafting a written constitution or by imposing certain kinds of political institutions and processes. Successful written constitutions - "the conscious formulation by a people of its fundamental law"8 - reflect an already existing consensus; they fit the underlying political culture. The early American constitutions worked because they codified existing practice and principles. Constitutions that do not reflect an existing consensus do not work, for written documents by themselves, imposed from above (whether by internal or external powers) or thrust upon a society by some revolutionary vanguard, cannot affect the beliefs of the people. Fundamental beliefs cannot be coerced. Rather, they emerge out of long percolation, by slow, persistent deliberative exchange by the people as they encounter and reflect upon the ever-changing circumstances of their political and social world.

The consensus that emerges from this process is more than a collection of pragmatic maxims, adopted because they are useful or because they work. Rather, the consensus is composed of a body of substantive truths, accepted by the people as basic knowledge about the nature of things. In their minds, the truths that make up the consensus reflect reality. The consensus truths provide the streambed upon which events, policies, and decisions flow, the solid ground upon which takes place the speech and action that makes up a people's life together as a nation. The consensual truths are forever, not just for this time and place.9 As truths, they exclude certain ideas and certain presuppositions as simply false. The consensus forms "the intuitional a priori of all the rationalities and technicalities of constitutional and statutory law. It furnishes the premises of the people's action in history and defines the larger aims which that action seeks in internal affairs and in external relations."10 The public consensus provides the background against which deliberation on matters of concern to all takes place. Real deliberation cannot occur in the absence of an assumption of consensus, an assumption that "among the people everything is not in doubt, . . . that there is a core of agreement [on basic principles] . . . We hold certain truths; therefore we can argue about them."11

Our founding documents directly proclaim the shared heritage of essential truth out of which our nation rises: "We hold these truths to be self-evident."12 Our tradition is one of rational belief. We hold these truths both because they are part of our heritage - they are, in Murray's word, a "patrimony" - and because they are, in a very real and substantive sense, true. They have been discovered lurking at the heart of human experience; they ring true in the shared moral sense of us all. They can be found in the structure of reality as we reflect upon it, as we observe and think about the nature of things. They are...