Thursday, April 27, 2006
On Tuesday, thanks to Mark Tushnet's generous invitation, I presented a paper to the participants in Georgetown's Colloquium on Constitutional Law and Theory. The paper was called "Religious Freedom, Church Autonomy, and the Libertas Ecclesiae," and it is forthcoming in Villanova's Journal of Catholic Social Thought. In a nutshell, I try in the paper to use the "libertas ecclesia" ("freedom of the Church") idea as a way into current debates about church autonomy, religious freedom, and expressive association. I really enjoyed the session; both Tushnet and his students were appropriately skeptical and generously helpful. Here are the first few paragraphs:
We do not talk much in Constitutional Law courses today about an 11th century monk named Hildebrand, who reigned as Pope Gregory VII and who excommunicated the German king, Henry IV, for refusing to disclaim a royal right to select bishops. The king later re-evaluated the wisdom – or, at least, the politics – of his refusal. For three days, in late January of 1077, he stood barefoot in the snow outside a castle at Canossa, doing penance and seeking reconciliation with the pope. As it happened, this dramatic standoff failed to resolve what we now call the Investiture Crisis. (The pope lifted the excommunication, but Henry would eventually invade Rome, install an anti-pope, and force Pope Gregory into exile.) Nevertheless, the confrontation has “entered indelibly into the memory of Western civilization,” and could well have been as important to the development of western constitutionalism as the later events at Runnymede or Philadelphia.
Hildebrand not only orchestrated the first great “propaganda” campaign in history in support of his struggle with secular powers for papal control over the Roman Church. He led a “revolution” that, as the great legal scholar Harold Berman reports, worked nothing less than a “total transformation” of law, state, and society. The battle cry for this papal revolution – an idea that would serve as the catalyst for “the first major turning point in European history” and as the foundation for nearly a millennium of political theory – was libertas ecclesiae, the “freedom of the Church.” In this paper, I explore the possibility that this idea – or something like it – remains an important component of any attractive account of religious freedom under and through constitutionally limited government.