Talks with Authors: Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, September 15, 2023, we host a “Talks With Authors” on Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues.

 

      Now, in the interest of time, I’ll keep our introductions today quite brief, but if you’d like to know more about either of our guests, you can access their impressive full bios at fedsoc.org.

 

      Joining us today as our moderator is Professor Saunders, who is a professor focusing on human rights, religious liberty, and bioethics at the Catholic University of America, where he also serves as the Director for Center for Human Rights. Additionally, he’s a Law Fellow at the Institute for Human Ecology, Professor and Director of the Program in Human Rights in the School of Arts and Sciences, and Co-director for the Center for Religious Liberty at the Columbus School of Law. And now, there’s certainly more to say, but I’ll leave it there and leave it to him to introduce our other guest today.

 

As a last note—before I get off your screens—throughout the panel, if you have any questions, please submit them via the question-and-answer feature, likely found at the bottom of your Zoom screens, so that our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Professor Saunders, the floor is yours.

 

Prof. William Saunders:  Thank you. So our speaker today is Michael Breidenbach. He’s Associate Professor of History at Ave Maria University and Senior Affiliate for Legal Humanities at the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. He was educated at Northwestern and Cambridge and has held research positions at Princeton, Oxford, Cambridge, University of Pennsylvania, Villanova, and Florida, and he was recently elected a Fellow of the Royal Historical Society.

 

      In 2020, he co-edited the Cambridge Companion to the First Amendment and Religious Liberty, and after that, he published the book we’re going to talk about today: Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America. So welcome, Michael. I would like to start out by reading just briefly from his conclusion to kind of set the stage. I think for many of us, this is an interesting subject that we don’t know as much about as we really should—about the Catholic influence in the development of religious liberty in early America.

 

      And to illustrate the important role that, actually, Catholics played, I want to just read briefly about the death of Charles Carroll in 1832. He was 95 years old, and he was the longest-surviving signer of the Declaration of Independence. And when he died, newspapers around the country had many tributes and praises to him. They said that a patriarch has been gathered to his Father and the last of the Romans and the patriot and Christian was praised for his support in the battle for liberty. And in fact, the president of the United States, Andrew Jackson, closed the federal government for a day, which is an honor that had previously been given only to George Washington. So obviously, Charles Carroll, a Catholic, was a key member of the founding generation, and that may be surprising to some people or to many of us who don’t know that history in which we’ll talk about today.

 

      And I wanted to kick that off by reading just a sentence from Michael’s introduction, which is obviously provocative in a good way—give us something to think about. It says, “Catholics became American by declaring independence from the pope.” So Michael, what can you possibly mean?

 

Prof. Michael Breidenbach:  Well, thank you very much, Bill, and thanks to Chayila for organizing this event. And I really looked forward to our conversation. Those who are viewing this webinar as well, I look forward to your questions. It is a provocative thesis of the book that Catholics became American by declaring independence from the pope. And the reason why I’m arguing this is because I tried to find a reason why you have, on the one hand, the longest surviving Declaration of Independence signer, Charles Carroll of Carrollton, being praised, many encomia given to this last signer, when we know that many of the Colonies were founded with anti-Catholic prejudice.

 

      Many of the states, even as states, continued to bar Catholics from public office, as it was in New Hampshire. Many of the states had a kind of establishment of religion still—even after the independence movement—that disadvantaged, legally, the Catholic citizens of those states. So what explains this remarkable transformation from going from suspected subjects of a king to being trusted citizens—indeed, not just citizens, but founders of a new republic? That was the sort of major question that I wanted to answer in the book, and my conclusion is what Bill just read for you from the introduction, which is that they declared independence from the pope. When Charles Carroll of Carrollton signed the Declaration of Independence, he wasn’t just declaring independence for a new nation. He was also, I think, declaring a kind of independence as a Catholic from any temporal authority and not just King George III or Parliament.

 

      And so, this is a surprising and—for, perhaps, some Catholics in America—may be an unsettling conclusion, especially after this first Vatican Council, when an ecumenical council, doubled down on papal authority, declaring infallibility of the pope in faith and morals, centralizing papal administrative authority, and so on and so forth. So we are in the shadow of Vatican One in the nineteenth century. And so, after the pontificates of John Paul II and Benedict XVI, I think -- and even the current pontiff were sort of conditioned to think that our allegiance to the pope is something ordinary and not extraordinary and certainly not dangerous for American citizenship. But Protestants and even some Catholics didn’t always agree with that statement. They thought that there was a tension and not just a tension but a contradiction in their civil allegiance and their purported allegiance to a foreign, temporal authority called the pope in Rome.

 

      And so, my argument is, effectively, the only way that Catholics were able to prove their loyalty is by stating quite explicitly that the pope does not have temporal authority over the United States or the American Colonies before and that he does not have infallibility in himself, even when he teaches on faith and morals—that infallibility rests in the church itself, in councils, not just in one person. So these are the two, let’s call it, preconditions for Catholic loyalty, both in England and in America. And you see that played out in the nineteenth century and, indeed, up until and including John F. Kennedy’s candidacy—that you had to constantly show that you were undivided in your loyalties. And these Catholics, like Charles Carroll, showed that and was, therefore, a kind of leader in his Catholic community and was able to show his loyalty and not just be a citizen but actually be part of the founding of the United States, including the First Amendment. 

 

Prof. William Saunders:  Yeah, and we can’t go through all of Catholic history, obviously, but there was Catholic history at the time of the founding, and then there were subsequent developments like you referred to, including the issuance of Dignitatis Humanae in Second Vatican Council, which guarantees religious liberty as widely as it could possibly be granted. I mean, it’s -- so the Catholic Church is not, in any sense, against religious liberty, but there’s a history in which this development of doctrine—as Catholics call it—occurred, and at the time of the founding in particular -- I mean, the Catholics who came to America were not just eccentric Catholics. There was a very live debate over certain issues, like you indicated—like whether the pope could intervene in temporal affairs. And these American Catholics that we’re talking about in the -- you're talking about in the book, said, “No.”

 

      So there was -- and tell us a little more about that history because I think that many people listening to the podcast may not have familiarity with what you call the conciliar -- is it conciliar -- conciliar constitutionalism, which is a phrase you use in the book. And non-Catholics may not even know what you mean by a council, so maybe just say a couple words about that.

 

Prof.  Michael Breidenbach:  Yeah. I mean, I’m afraid most Catholics may not know what I mean by conciliarist movement or councils either. So it’s something that I came to almost by happenstance by reading political thought and intellectual history at Cambridge, where I was discovered -- where I discovered this very interesting—almost premotions—to republican theory, these kind of -- let’s call it the ecclesiastical roots, the religious roots of early modern and modern political thought on republicanism.

 

      So effectively, what you have is, in the Middle Ages, you have this constant tension between papal authority and imperial or kingly authority. Right? Who has the swords of temporal and spiritual authority? And this comes to a head when you have different claimants to the papal throne—when you have at least three men saying that they’re pope. And one of the ways you resolve this is by saying, “Well, there’s this council, which is a group of bishops, who declare that so-and-so is a pope, effectively. And so, what that does—this is the Council of Constance -- what that does is place this group of bishops, in a way, in a higher authority than the particular pope. Right? Because it’s the council that’s determining who’s pope.

 

      Now, this is a game changer when it comes to ecclesiology or how we understand the church’s governance, how it’s structured, and so on—the nature of the church—because what it presents is a kind of—if you could use a political analogy -- a kind of parliamentary system in which the authority or the spiritual authority is diffused among the bishops, collectively. And so, when they come together in a council—or, if you will, like a parliament—and they decide and they define things, then it’s authoritative. So it’s not just one person. In other words, I’m describing a kind of parliamentary or proto-republican structure rather than just an absolute monarchy.

 

      Now, people look at what’s happening in the church, and they begin to think, “Well, maybe this can happen in our political sphere as well.” So what this does is open up the possibility for shared governance. And what I’m arguing is that the Catholics in the American founding and Catholics in colonial America were very attuned to these debates. They knew about the debates between, say, the pope and Queen Elizabeth and the pope excommunicating Queen Elizabeth I of England because she’s declared a heretic, and heretics should not be obeyed. And so, you don’t have to obey her. I’ve absolved you from whatever oaths you swore to her. And in extreme cases, you had some Catholics saying that tyrannicide is legitimate.

 

      Famously, a pope annulled the Magna Carta—so a civil agreement or a civil law. And so you have these constant, temporal interventions from a papal authority that’s also a temporal authority. Right? He’s not just a spiritual but also a temporal leader, owns property—the papal states—and so on. And so, when these Catholics are being trained in Europe -- John Carroll, the first bishop of the United States; Catholic bishop of the United States, Charles Carroll, his second cousin; John Carroll’s brother, Daniel Carroll, who became a constitutional framer and a signer of the Articles of the Confederation as well—he was one of the -- the only one to speak unambiguously in support of James Madison’s amendment for the Constitution: the First Amendment. All these Catholics were trained, educated in Europe. They were well acquainted and fluent in these debates, and they picked up this kind of conciliarist language— that is to say, “Spiritual authority rests in all bishops, not just the bishop of Rome.”

 

      They were fluent in conversations about the way in which there’s a kind of separation between the ecclesiastical and the political spheres, such that the pope cannot intervene in temporal affairs of England or its colonies. So this constitutional theory I’m arguing is a kind of bedrock understanding for both Catholics and Protestants, who also take it in two interesting directions with regard to whether the king should be the head of the church. And some say, “No,” because of conciliarist theory. It’s like the church is a defused governance among bishops, and there should be no confusion between the king’s power and the pope’s power. So --

 

Prof. William Saunders:  Sorry. No, I’m sorry to interrupt you. Please.

 

Prof. Michael Breidenbach:  So basically, the point here is that this kind of conciliarist thought that kind of understands papal authority as a center for ecclesiastical unity, as a good moral teacher, and certainly, as bishop also having a share in infallible power but not being infallible by himself, all that understanding, again, is within the Catholic tradition or a Catholic tradition. And so, my argument is that when these Catholics are thinking about religious liberty and thinking about their place in American politics and what it is to be an American citizen, they’re drawing on this Catholic tradition rather than simply a standard enlightenment story or a simple Protestant story about how Protestants were the one’s only who ushered in religious freedom in America. These Catholics were on the ground, starting very early in the Colony of Maryland, to make explicit laws that provide for—at least, in the case of Maryland—religious toleration for all Christians.

 

      So there’s a kind of unique Catholic intellectual reservoir that they’re drawing from that we can trace, quite explicitly, that is not incompatible with the Protestant or Enlightenment story but gives us a kind of fresh perspective on the way that Catholics uniquely helped to form American religious liberty.

 

Prof. William Saunders:  You want to say a little more about Maryland and the history of Maryland and the Toleration Act? Again, we’ve got all kinds of folks, I’m sure, listening in—some who will know a lot of history and some that won’t. So maybe you could say a little bit about that.

 

Prof. Michael Breidenbach:  So when James Wilson—one of the great American jurists and founders of the United States—gave his law lectures, he says, explicitly, that we often turn to people like John Locke for understanding American religious liberty, and he doesn’t -- he says, “I don’t want to dismiss Mr. Locke, but what about the ungracious silence of Mr. Calvert for this tradition of religious toleration,” and later, liberty? And the Mr. Calvert in question here is Cecil Calvert, one of the founders of the Colony of Maryland. And one of the ways that I think we should understand the development of American religious toleration, and eventually a more robust natural rights view, is to see Catholics working side-by-side with Protestants and not always the story—which is always often the standard textbook kind of story—about an antagonism.

 

      I mean, there were antagonisms, even in the case of Calvert. He was under constant suspicion by his Protestant enemies that he’s a papist who allies with Spain or France, the Jesuits are always sort of sleuthing around; that’s all there. I don’t want to discount the virulent anti-Catholicism that crops up in colonial and even post-revolutionary American history. At the same time, the Calverts—the founders of Maryland, George and Cecil Calvert, his son—show a story that affords Catholics a kind of agency, not just that they’re foils, but founders.

 

      So in the case of Cecil Calvert, the surprising thing about Maryland that he found is that it’s a colony ruled by a Catholic in a Protestant empire. Your question is like, “Why would the king even grant this Catholic family land around the Chesapeake Bay, right next to an explicitly Protestant colony—Virginia?” And the answer is because they showed, through their service to the king and also through the oaths that they reconstructed—that they sort of amended -- that showed that they were going to be loyal subjects of the king and that they did not believe that the pope had the kind of power that popes and theologians like Robert Bellarmine had argued.

 

      And so, in the archives in London, I found the oaths that the Calverts tried to amend. The standard oath came after the Gunpowder Plot, in which a Catholic tried to assassinate the king and parliamentary members. And so, after this—perfidious Catholic, would-be assassin—the king, James I -- he creates this oath of allegiance that basically creates a litmus test for Catholics. Either you’re a good Catholic or a bad Catholic, which, obviously, is assuming that there can be some good Catholics, but they have to sign this oath. And the problem is the pope said, “If you sign this oath, you’d be excommunicated.” And so, these are terrible options for English Catholics. And that’s the context in which Maryland is forged.

 

      And George and Cecil Calvert were on the side that they weren’t going to sign the initial oath that James—and later, Charles—wanted, but they actually just amended it. They’re trained as lawyers. They find little ways of going around the issue on ways that show their conciliarist sympathies—of sort of putting the brakes on papal authority in certain ways but still remaining in the king's good graces. So this is how they square that circle. It’s quite impressive. It's an exercise in compromise and toleration. And eventually, when you see the actual oath, there’s no mention of the pope whatsoever. They kind of suspend it in a kind of holy ambiguity. Right? This is like, “Let’s not talk about -- we’re just going to prove your loyalty by swearing this pretty simple fealty oath, and we’re going to colonize and try to settle and be productive English citizens in America.”

 

      And so, the effect of this is that lots of Catholics could now join this colony, and they do. And they create one of the first -- well, I think it is the first systematic toleration law in British North America. It’s not the first toleration law if you understand Rhode Island to be the first one to grant religious -- they call it liberty of conscience. But it’s not systematic. There’s no penalties if you abrogate that law or violate it in some way. This act concerning toleration, as it’s formally known in 1649, gives specific penalties for those who deny what the law calls free exercise of religion. So this is the first time in British North America where you have an explicit, systematic toleration law. So it’s quite impressive.

 

Prof. William Saunders:  Yeah. One other thing I just want to hit because I’m sure we’ll have questions, but you -- well, one thing I want to be sure to hit now—I have several other things if I have a chance -- but another sentence you have, I think, is very interesting in your introduction. You say, “The story of --” well, as you just said, “The story of American Catholics begins with a test of loyalty,” by which you mean that both the history you just recounted, literally, and the fact that the Catholics in America had to prove to other Americans, colonists, that they could be loyal to -- particularly when you had the revolution, that they could be loyal to the government and they could be trusted. And then you say in here that—again, I’m quoting—“Tracing the history of the Carrolls, shows how Catholics challenged Locke’s theory”—about religious liberty and Catholics—"and the laws that justified it.” Do you want to say -- because I imagine some of our listeners, maybe all, are at least familiar with the Carrolls to some extent, but I think that that’s an interesting way to illustrate your -- what you’re doing in your book.

 

Prof. Michael Breidenbach: Yeah. That’s a great question about, particularly, John Locke because he has a kind of outsized importance in these kind of conversations about the origins of American religious liberty. And my main point is that there are several origins of American religious liberty—John Locke included. But the problem with John Locke, of course, in his letter concerning toleration, is that he explicitly—well, at least, I think it’s explicit—denies Catholics and atheists, but for different reasons -- denies them religious toleration. And his argument is coded because he talks about Mahometans—as he calls them—delivering themselves up to a foreign power like the sultan or something like this, but it’s quite clear that he has in his crosshairs Roman Catholics, just as his friend in Parliament had explicitly tried to exclude Catholics from politics, including the throne—the royal throne.

 

      And so, the whole discussion revolves around whether you can grant religious toleration at all—I mean, this is very basic toleration—to those who, as he calls it, “Deliver themselves up to a foreign prince,” and clearly, he has in mind the pope in this context. And his answer is, “No, you cannot.” And the reason is exactly what we’ve been talking about, which is that if you have an allegiance to the pope, who’s also a temporal authority but also a spiritual authority who claims to be able to have the power to interfere with other temporal authorities, then you’ve rendered your temporal sovereign—the King of England or the Queen of England—effectively powerless. And so, if the pope can annul civil laws, declare war and peace, excommunicate heretical princes, authorize the murder or killing of a tyrant, and so on, then you are ipso facto an enemy of the state—at least in potential. And that can’t be tolerated.

 

      So that’s the fundamental argument of John Locke, and it’s the argument that Samuel Adams, for instance, in the Committee of Correspondence in the pre-motions of the American Revolutionary war, mentions quite explicitly that papists basically have a foreign prince and that they practice what he calls the solecism in politics imperium and imperia—a state within a state.

 

      In other words, you have a state or a colony or a sovereignty, but then you have within that the ultimate ecclesiastical sovereignty that pervades and influences and, potentially, undermines your temporal sovereignty. And so, that is not tolerated. And that sort of seeps into a lot of the discourse that we find in revolutionary politics. It’s the reason why the Quebec Act is called intolerable. It’s the reason why Catholics are prohibited from public office, sending their kids to Catholic school, not being able to bear public witness in court, and so on and so forth.

 

      So what these Catholics do, like the Carrolls, is acknowledge that that is a problem. They sort of meet Locke where he is and says, “Yes. If someone believes that that’s a problem. We don’t believe it, so the conclusion doesn’t follow.” So, in some ways, what I’m saying is compatible with Locke’s sort of broad argument, but the middle term just isn’t true. And so, that’s why someone like John Adams can support even a Jesuit priest to go up to Canada with his second cousin, Charles Carroll—the Jesuit priest in question here is John Carroll, later to become bishop—to Canada to curry favor among the Catholic Canadians in the Revolutionary War effort. They trust them so much they call him a Catholic yet a zealous patriot. Right? They notice the tension here, but these are good Catholics.

 

Prof. William Saunders:  Michael, one thing I just wanted to ask—and you talk about this -- but so the Catholics didn’t become Protestants or -- I mean, that would be a wrong way of putting it because -- well, I’ll let you put it in your own words. But they were all revolutionaries, or they were all in favor of liberty in America, whether they were Catholic or Protestants, the people we’re talking about. Is that a fair way to put it?

 

Prof. Michael Breidenbach:  Yes. I suppose you could see that Catholics became American by becoming Protestant, and I can see where people might interpret what I’m saying as that. But just to speak for these Catholics for a moment here, they would emphatically deny that sort of interpretation. They would see what they’re doing as within a reliable Catholic tradition. They would recognize that they might have more in common with Protestants, and that would be sort of the point. John Carroll as bishop was very ecumenical.

 

      If you look at his -- the cathedral that he commissioned in Baltimore, which is still there today, he commissioned the same architect, Benjamin Henry Latrobe, that redesigned the U.S. Capitol building. And so, he’s incredibly sensitive to this idea that the way we present ourselves beyond the four walls of the church should be in consonance with the American political and religious landscape, which is predominantly Protestant. But they would insist that they’re still Catholic because they still hold what they call the due authority to the pope, which to quote John Carroll, “Is in matters purely spiritual.” And so, it just doesn’t touch temporal authority. And this is the argument that future bishops will use, like Bishop England. When he speaks to the U.S. Congress, he says, effectively, the same thing. And so, they insist that they’re not Protestant even though, of course, they may look more like Protestants than their so-called ultramontane Catholics in Europe.

 

Prof. William Saunders:  Well, I’m just about ready to read a question or two. Have I let the -- cut you off or anything on something you wanted to say so far, Michael?

 

Prof. Michael Breidenbach:  Well, given that we’re speaking to those interested in law in The Federalist Society, I think we might make mention of the generating history of the First Amendment for a moment because I think this is a really interesting part of the story, that it’s not just that early American Catholics signed a -- formed a toleration act and so on because that might be all well and good, toleration is not the same thing as religious liberty. And so, what I show in the book is that these Catholics were at the formation and finalization of the First Amendment. So when James Madison presents his amendments to Congress—the first congress in New York City—there were two Catholics there: Daniel Carroll and Charles Carroll of Carrollton, a congressman and a senator, respectively, both from Maryland. And when James Madison presents the amendment, Daniel Carroll is recorded—in what became the official record, but at the time was basically just a newspaper—as unambiguously supporting what Madison had in mind.

 

      And it’s sort of interesting, for those who might be originalists listening, that what Carroll said is that “I don’t particularly care about the phraseology. What we’re trying to get at here is the kind of general sense that liberty of conscience needs to be secured to effectively ensure that anti-federalists are on board.” And other congressmen make remarks, and some say it’s not necessary, it defaults to the states, and so on and so forth. But Daniel Carroll here is given a kind of pride of place in that record. And the reason I argue that he’s given pride of place is because the person writing what became the official record was also Catholic. He, in fact, was taught by Bishop John Carroll in Europe. His name is Thomas Lloyd. And just as Thomas Lloyd, in other works, privileges his fellow federalists in ratification debate records and so on, I argue that they certainly knew each other and that Thomas Lloyd, a Catholic, is giving another Catholic an outsized importance in that record.

 

      And then, of course, Charles Carroll, as senator, was on the final committee to finalize the text of the First Amendment. Of course, that’s -- what actually happened in that committee is lost to history. But the fact that a Catholic was there at the table is extraordinary, and we can only speculate as to what influence he may or may not have had. But the fact that he was just there, I think, shows the remarkable transformation when we compare it to the sixteenth/seventeenth century when Catholics were very much marginalized and discriminated in English law.

 

Prof. William Saunders:  The fact the Constitution prohibits any oath of -- religious oaths for office is, I would think, directly reflective of the history you’ve been talking about.

 

Prof. Michael Breidenbach:  Yes. I consider Article VI—the No Religious Test Clause—as the first non-establishment clause. Right? Because establishment meant many different things: paying clergy, supporting the building of churches, sometimes vetoing ecclesiastical appointments, but one thing it meant, always, was that there would be not monopoly of a particular religious sect or sects in government. And the first oath given that these Catholics signed was not to a person but to a constitution, so it’s one of the first impersonal oaths, as well, that has nothing to do with religious except the fact that they’re swearing and, therefore, maybe -- and swearing it to God, which is a kind of religious oath in a different description. But that is very remarkable, and it’s the first pre-motion, I think, to non-establishment.

 

Prof. William Saunders:  I know the phrase you use in the book a couple -- multiple times is, “Loyalty over liberty,” or something to that effect and by which you’re referring to what you’re saying. Right? Loyalty to the temple sovereign and temple matters, not loyalty to a non-temporal sovereign. Right? I mean, that’s what loyalty over liberty -- that’s why you use that phrase? Or if not, please explain, but I think that’s what you mean.

 

Prof. Michael Breidenbach:  Yeah. This is sort of a very broad point that I’m trying to make by suggesting that you can have a natural-rights view of religious liberty. In other words, there are inherent rights, whether God-given or just natural somehow, and that they’re inalienable, but the only way those natural rights are going to be protected is if you first pledge your loyalty. So it’s loyalty before liberty. Loyalty before liberty. So you don’t get your liberty—or, at least, you don’t get the protection of your liberty—unless you pledge your loyalty. And so, in some ways, every sovereign is jealous for loyalty, not just in a monarchy but even in a republic. So even as you pledge allegiance to the Constitution and not to a particular king, you’re still pledging the kind of allegiance that’s a prerequisite for your protection of even natural rights. Right? But of course, especially if you have a positive rights view.

 

      So I’m sort of challenging those who think that it’s an obvious thing that governments need to protect rights. There’s always, I think—at least the way I see it historically played out -- there’s always, as it were, a catch that you have to pledge your loyalty in some way. And the remarkable thing that these Catholics did is they convinced people who disagree with them religiously to acknowledge that they do actually have that loyalty.

 

Prof. William Saunders:  Michael, I think I might read a question or two that we have. And I’ll remind people you can submit questions through the Q&A function. But I think we may have touched on these, but I think the fact that we have a question may mean that you need to hit the point again or approach it slightly differently. But one person says that when he was growing up, his father used to say something similar, that the pope only had moral authority over faith and morals—and that was in the ’60s. And he’s wondering how common this kind of talk is and where there was a kind of the talk that we hear about with respect to African American use. I’m not sure I quite understand that, but you may. But he always thought this was part of the bargain Catholics made with American democracy. Particularly, what do you think about that?

 

Prof. Michael Breidenbach:  Yeah. So the 1960s is a very complicated decade for American Catholicism because it’s, at once, the first time a Catholic becomes a U.S. president, and it’s also a time of the Second Vatican Council, when the bishops -- the Catholic bishops around the world come together in the Vatican City State to convene on how to, as it were, confront new questions about morality and religion, and so on—in other words, how the Catholic Church should approach modernity.

 

      And so, it’s -- and you have all sorts of new technologies, the sexual revolution and so on, going on and vast changes in the church and the state. And so, one of the productive things that comes out of the Second Vatican Council is, as you mentioned, Bill, Dignitatis Humanae—or the Declaration on Religious Liberty—and that’s a fulsome account of religious liberty that contemplates the source of that liberty based ultimately on God and about one’s conscience, that one can only really, truly have faith if one is free in forming that faith and accepting that faith from God.

 

      Now, some people in the ’60s and since take this concept of conscience and say, “Well, ultimately, because it’s my decision, no one has authority over me.” Right? And that’s not quite how Dignitatis Humanae construes it. It’s there still are authorities over you. Right? First and foremost, your parents when you’re young and then maybe educators and -- but certainly the church, and it’s what Catholics call magisterial teaching: the pope's teaching, the council’s teaching, the tradition of the church, canon law, and so on.

 

      And so, when people say, “Well, the pope only has moral authority over faith and morals, he also has administrative authority. He can censure priests. He can excommunicate Catholics. There’s a fairly extensive authority accrued to the pope. But I think when people say that, what they mean is, “Well, he can give me doctrine and teach me, but ultimately, it’s going to be my decision based on conscience.” And that’s sort of, I think, halfway there. I think, obviously, the pope is informing conscience, and so, when he speaks infallibly, then that is not -- has no error, just as when a council speaks authoritatively.

 

Prof. William Saunders:  Yeah, and that-

 

Prof. Michael Breidenbach:  And so, yeah.

 

Prof. William Saunders:  Oh. I just want to say, I mean, the Vatican Council itself declares what you said—that you have a responsibility to inform your conscience, and second of all, it sets up the conditions of infallible teaching, which are more than a statement. I don’t want to go into -- this is obviously Catholic doctrine, but just to give people listening, if they’re not familiar, a sense of it, it can be this pope speaking infallibly—kind of from a chair of St. Peter—but only reflecting what the church holds. So it’s not just a whim of a pope. And second of all, infallible teaching can come through the ordinary magisterium through time—which means the bishops together through time—and it can come through a council, which you can’t have a council unless it’s joined to the pope. So the pope is essential part of it, but it’s -- and I’m not saying this was all understood, and that’s the point really.

 

      The point is what did American -- what did Catholics think, and American Catholics think, and what was a very reasonable point of view at the time of the founding and before and after? There’s been developments or doctrine since then. And the pope -- again, he does have temporal authority, even today, but it’s in a very tiny -- it’s the littlest state, I think, in the world, called Vatican City. But he used to have half of Italy or more with the papal states, and he was a literal prince, temporal power.

 

      So things changed historically, and we don’t want to read things back into history, but we don’t want to -- so we don’t want to judge what was going on or think about it as if it took place in light of all that’s happened since. We’re looking at it at the time, and you are saying there was this conciliar tradition that were contending points of view, and one of -- that point of view was moral freedom rather than papal intervention or authority in temporal affairs. 

 

Prof. Michael Breidenbach:  Right. Right. Yeah. That’s well said. Yes.

 

Prof. William Saunders:  Let me read another question here. And I think this gives you a chance to, I think, restate a point. Is it really right to say that Catholics “declared independence from the pope” when the popes named Carroll as bishop and appeared to endorse this approach—perhaps less a denial of temporal authority than a flexible approach in this circumstance?

 

      I think that’s what you’re saying. To me, anyway, what was -- and the reason I read the sentence was I think it’s provocative about declaring independence from a pope because it makes you stop and think. It arrests your attention. But you’re not saying that they said the pope was not the pope. They just said being pope -- part of being pope did not include the right to intervene in temporal affairs in different nations.

 

Prof. Michael Breidenbach:  Right. It’s a declaration of temporal independence, if I can use that qualifier. The question about Carroll being declared bishop is quite interesting because it actually shows the point in a very concrete example. Obviously, a bishop is an important role/structure within the church because the only way you get more priests in your country is either by bringing them over from another country or by ordaining them with a bishop. And so, it’s incredibly important to have a bishop in the country if you want Catholicism to grow. And so, the Vatican that I looked at -- there are archives in the Vatican that I went through to show this transformation of going from a very mission-based -- just a few Jesuits and some priests, to having a diocese structure.

 

      How did that work? Effectively, John Carroll, before he was bishop, said, “We cannot have the pope appoint a bishop because it would offend the republican sensibilities of Americans.” And so, it happens that one of the pope’s representatives talks with Benjamin Franklin in Paris and says, “We’d like to appoint a bishop. Can you please get Congress’s approval for that?” And Franklin, rightly said, “Congress has no power over this.” And the papal representative said, “Oh, no, no. Please. Please ask them.” And so, he does, and Congress—in really the first statement of church-state relations from a congress—this is the Annapolis Congress—says that Congress has no power in matters purely ecclesiastical or spiritual.

 

      It’s really -- and again another kind of proto non-establishment clause already, in 1783, and that’s concerning the appointment of a bishop. So Congress prescinds from this kind of decision, and says, “Look. This is an internal matter within the Catholic church.” Obviously, they want someone who’s going to be favorable to the republican institutions, and so, John Carroll is that man. But Carroll, to the very end, refused to be appointed. So instead, he suggested that he be elected by his priests.

 

      Now, this is not actually that extraordinary in European Catholicism. Every cathedral has priests called canons, and the canons elect the bishop for that cathedral. And then, sometimes kings appoint bishops. But in all cases, the pope has to approve those decisions. People might have heard about the case in China recently about bishops being sort of appointed by the People’s Republic of China and then the pope basically allowing that. This is sort of like Medieval Europe, in which temporal sovereigns would do that.

 

      So Bishop Carroll -- John Carroll knows this kind of tradition, and says, “Well, my priests will hold an election.” And lo and behold, he’s elected. And so, that election is sent to Rome, and the pope confirms that election. This is how they want to construe it because they don’t want it to seem that the pope is just directly interfering with what looks to be a very prominent, maybe even political, position, not just religious one. Because remember there’s the House of Lords that have bishops in it. Right? I mean, bishops were part of the political arrangement in England, and so, Carroll’s sort of sensitive to this idea that bishops should not be creatures of a foreign power.

 

Prof. William Saunders:  Yeah, I think the --

 

[CROSSTALK]

 

Prof. Michael Breidenbach:  They should be indigenous in that political structure. 

 

Prof. William Saunders:  Yeah. I think you -- I mean, you do make the point in here that unlike Europe, America—colonial early America—was a place without an established church, so it was -- all these things were being determined in a new environment because usually you were in a European country with -- like you said, in England with bishops in the Parliament, etc.—an established church—but you didn’t have that here. So part of what Catholics needed to do was to show that they—I mean, needed to do, not as a false thing but as a true thing -- to show that they were loyal citizens and that the model of other countries of established church was not what they believed in as part of liberty and as part of Catholicism.

 

      So there wasn’t an inconsistency. They weren’t being disloyal Catholics. They were being loyal Catholics with a certain opinion, which you can say with Dignitatis Humanae, they were -- they certainly had a good part of the truth in what they’re ultimately [inaudible 51:48]. So Michael, let me ask you, because we’re running out of time, is there anything -- or what else would you like to say about your book that I may not have brought out for the listeners?

 

Prof. Michael Breidenbach:  Well, I think when we consider contemporary discussions about American religious liberty, we often look at the history of -- like Supreme Court decisions, for instance, will often turn to the generating history, to quote—what was it—Justice Rutledge in Everson -- the generating history of the religion clauses. And the problem with the way that the Court has often used history is that sometimes they have a predetermined judicial determination, and then they fit the history toward that. Often, this has been maligned as law-office history.

 

      On the other hand, you might see it in a genuinely originalist sort of constitutional interpretation theory, in which you truly want to know what the history was, especially if you’re sort of an old originalist—the framers’ intent kind of originalist—or even in so-called new originalists about looking at the broad language, newspapers, the kind of public meaning. Either way, I think -- I would encourage those who are listening, who are lawyers, practitioners, and so on, to not have any preconceived notions based on one’s judicial opinion or juridical opinion before they get into the history because as a historian, we have to be -- constantly be willing to be surprised at what we find. And when I started this project, I didn’t know what the conclusion would be. And, in fact, the conclusion quite surprised me and unsettled me in some ways.

 

      And so, I think we need to keep an open mind about the multifarious ways in which American religious liberty—and eventually, the religion clauses—developed. And so, it’s one thing to have the constitutional theory and your theory about interpreting the Constitution through precedent and so on and so forth; it’s another to do the history really well. And so, oftentimes, those things don’t mesh at all. Sometimes people are in these silos. And I think, if I could, just encourage the practitioners just to read this history. And maybe it doesn’t determine, in any strong way, one’s juridical opinion, but at least you’re sort of, as it were, more informed about its context, and at the very least, you’re not just weaponizing history for a particular juridical opinion—that we really take the kind of sensitivity to this kind of subject because it is incredibly complex. So I just hope today’s discussion sort of gives you a foretaste of that complexity, and some of the richness that comes out of a historical investigation. 

 

Prof. William Saunders:  Thank you. I’ll just hold up the book. I hope you can see it. And you can tell I’ve marked it up and enjoyed very much reading it. I think it’s absolutely fascinating and, I think, indispensable, corrective to the understanding a lot of us have of the development of religious liberty in America or let’s say, maybe, a forgotten stream into the development of that. And so, personally, I encourage you to read this book. It’s very helpful.

 

      I think that we have to -- before we close off, I think that Chayila has a couple of things to tell us.

 

 

Chayila Kleist:  Just thank you to you both for joining us today. I really appreciate you sharing your expertise and your time. And thank you to our audience for joining and participating and giving us your questions. As always, we welcome listener feedback by email at [email protected], and if you’re interested in more events or webinars like this, feel free to check your emails or our website for announcements for other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.