For some time now the level of political conversation possible in the public square of this country has been laughable. We seem to be incapable of actually discussing the issues at a rational level. Political elections are no longer won by argument and truth but by spending the most money in the right ways. This fact may indeed be a harbinger of the coming downfall of American civil society, at least according to the logic of thinkers like John Courtney Murray and Joseph Ratzinger.
According to Murray the American project is different and better than its European counterparts because of its system of checks and balances and because of the Bill of Rights. These are evidence of a commitment to limit government so that pluralism might flourish. Murray makes distinctions between the sacred and secular, civil society and the state, and the common good and public order. According to this the state is merely one actor in the larger society, having the responsibility to maintain public order through the use of coercion. The maintenance of public order assures the relative peace necessary for the flourishing of the common good within civil society. He sees the First Amendment as an “article of peace”, allowing for civil society to be a sphere of neutrality with regard to religion.
Murray admits that there is an inherent instability in the relationship between the state and civil society because the maintenance of the state and of public order demand unity, but civil society is intended to be the free space in which a pluralism grows, where the conversations among Protestants, Catholics, Jews, Muslims, atheists, and secularists are held. Thus there is a constant tension between unity and plurality. This should could as no surprise. We see the same tension at work in the Church.
For Murray, the solution to this tension is, or perhaps more accurately was, the “American Consensus,” which is embodied in the Bill of Rights as an expression of the Natural Law. This serves as the shared set of presuppositions, the common ground, necessary for true conversation and for the possibility of rational argument. Murray admits that the American Consensus no longer exists and rests his hope on the Church in America to bring Natural Law back into the conversations of civil society, to restore the foundations necessary for ordered pluralistic conversation. Murray explains that without such a consensus and the possibility of argument, the democratic principle of consent looses its grounding and devolves into mere majority opinion, which is no sure guide to maintaining the common good. In fact, it is just as likely to lead to tyranny.
Ratzinger makes a similar argument, expressing his belief that in the political sense, freedom is freedom from tyranny and only exists through what he calls a system of constraints. He writes that “a fundamental question for the democratic system is whether the will of the majority can and should do anything it likes. Can it declare anything it likes to be law that then is binding for everyone, does reason stand above the majority so that something that is directed against reason cannot really become the law?” Thus for Ratzinger democracy must rest upon an ethos, a shared set of values, human rights, which are held in common and are above the authority of the majority. Any democratic society must address itself to the question of what must be protected for freedom to exist and to be maintained. For Ratzinger, the shared ethos must be protected, and the constraints of government ought to do the protecting.
Thus the question, do we still have an American Consensus? Can the First Amendment still function as an article of peace? Or is American civil society merely at the mercy of majority? If we have lost the consensus, what functions as the glue that holds together this society?