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Don't be put off by the title. In many ways you'll find this one of the most interesting of all Professor Swidler's essays. It'll causes one of those pleasant feelings you have when you read something and end up exclaiming "well, I never know that before". Much of this is written from an American perspective but it's valuable history to know.

Creating a "Constitution" for your Parish?

Surely the idea of a Constitution for the Catholic Church is a wildly bizarre secular notion that is totally inappropriate for such a sacred institution! Right? Well, the bishops, including the bishop of Rome, the pope, did not think so.

The very term "constitution" appears in church documents, most recently in the titles of several of the documents of Vatican II, e.g., the "Constitution" on the Church, the "Constitution" on Revelation, etc. The term "constitution" is used because the matter treated is "constitutive" of Christianity. The term "Bill of Rights" of course does not appear in ecclesiastical documents because it is a specifically English/American phrase, but its exact equivalent does appear from the pens of both Pope Paul VI and John Paul II, and long before that from the American Catholic bishops.

I. THE POPE'S CALL FOR A CONSTITUTION

During Vatican Council II, on November 20, 1965, Pope Paul VI spoke of a "common and fundamental code containing the constitutive law (Jus Constitutivum) of the church" which was to underlie both the Eastern and Western (Latin) codes of canon law. It was clearly what Americans refer to as a "constitution".[1] Thus was born the modern idea of a Catholic Church "Constitution", a Lex Ecclesiae Fundamentalis — more about the Lex below. In his address to the Roman ecclesiastical high court, the Rota, just one month after the promulgation of the new Code of Canon Law (1983), Pope John Paul II called specific attention to the "Bill of Rights", "Carta Fondamentale", in the Code:

The Church has always affirmed and protected the rights of the faithful. In the new code, indeed, she has promulgated them as a "Carta Fondamentale" (confer canons 208-223). She thus offers opportune judicial guarantees for protecting and safe-guarding adequately the desired reciprocity between the rights and duties inscribed in the dignity of the person of the "faithful Christian".[2]

	Pope John XXIII

Another of the democratizing moves Vatican Council II made was to inspire the total revision of the 1917 Code of Canon Law in the spirit of democracy and constitutionalism. Already on January 25, 1959, Pope John XXIII announced simultaneously the calling of the Second Vatican Council and the revision of the 1917 Code of Canon Law.[3] Even before Vatican II was completed, work was begun on the writing of this Catholic "Constitution of Fundamental Rights", the Lex Ecclesiae Fundamentalis. Father James Coriden, a co-editor of the 1985 magisterial 1150-page folio-size The Code of Canon Law — a text and commentary (commissioned by the Canon Law Society of America) and the Dean of the Catholic Theological Union of Washington, D.C., wrote that "The origins of the Code's bill of rights [the new 1983 Code of Canon Law eventually absorbed the fundamental "rights" articles of the Lex Ecclesiae Fundamentalis, rejected by Pope John Paul II] were not in a Constitutional Congress, but its history and development clearly reveal its truly constitutional character".[4]

As noted, it was on November 20, 1965, that Pope Paul VI said to the Coetus Consultorum Specialis (Commission for the Revision of the Code of Canon Law) that the opportunity to provide a "constitution" for the Church should be seized while the 1917 code of canon law was being overhauled in the light of Vatican II.

Two things should be especially noted about the Lex Ecclesiae Fundamentalis: 1) It clearly was to serve as a "constitution" in the sense that it was to provide the fundamental juridical framework within which all other Church law was to be understood and applied. Like the American Constitution, if any subsequent law passed were found to be contrary to the Lex Fundamentalis, the subsequent law would be void. 2) The Lex Fundamentalis was to serve as a fundamental list of rights of the members of the Church, like the American "Bill of Rights".

Concerning the first point, the explanation (Relatio) by Msgr. Onclin that accompanied the 1971 draft of the Lex stated clearly that "since a fundamental law is required, on which all other laws in the Church will depend. ... Laws promulgated by the supreme authority of the Church are to be understood according to the prescriptions of the Lex Ecclesiae Fundamentalis ... laws promulgated by inferior ecclesiastical authority contrary to the Lex Ecclesiae Fundamentalis lack all power".[5]

Concerning the second point, Father Coriden wrote referring to the Lex Fundamentalis as key portions of it were imbedded in the 1983 Code of Canon Law: "The bill of rights is part of the bedrock upon which is based the rest of our canonical system....The Coetus's communication to the Episcopal synod of 1967 described the enumeration of rights of the faithful as fulfilling one of the chief purposes of the 'fundamental code.'"[6] Already in 1967 the Coetus told the Synod of Bishops in its ten guiding principles the following:

The principal and essential object of canon law is to define and safeguard the rights and obligations of each person toward others and toward society.... A very important problem is proposed to be solved in the future Code, namely how the rights of persons can be defined and safeguarded.... The use of power in the Church must not be arbitrary, because that is prohibited by the natural law, by divine positive law, and by ecclesiastical law. The rights of each one of Christ's faithful must be acknowledged and protested.[7]

A further aspect of the Lex Fundamentalis is worth noting here. From the inception of the Coetus in 1965 until the press leak in 1971, its work was all done sub secreto. Why it should have been so is not clear, except that that was the way things had always been done. However, after the leak Msgr. Onclin held a press conference in which he "recalled that the draft text was only a working paper which will probably be modified in conformity with the wishes of the bishops. These, in turn, may consult priests and laymen, and the result will therefore be a truly Church-wide consultation".[8]

Here we could see the "democratic" thrust of Vatican II moving forward in a deliberate, sure-footed manner, neither rushing nor hesitating. For eighteen years the Vatican Commission (Coetus) worked devising and re-phrasing the Constitution (Lex), and as Msgr. Onclin said, its natural momentum would have made it available to ever wider circles for their input. The fundamental reason for this increasing openness was made clear by the Vatican itself. As Peter Hebblethwaite mentioned in his biography of Pope Paul VI, the Vatican instruction, Communio et progressio on the implementation of the Vatican II decree on the mass media was issued less than two months before the Lex leak in Il Regno. It made a clear argument in favor of open government in the Catholic Church:

The spiritual riches which are an essential attribute of the Church demand that the news she gives out of her intentions as well as her works be distinguished by integrity, truth and openness. When ecclesiastical authorities are unwilling to give information or are unable to do so, then rumor is unloosed and rumor is not a bearer of truth but carries dangerous half-truths. Secrecy should therefore be restricted to matters involving the good name of individuals or that touch on the rights of people whether singly or collectively.[9]

II. REPRESSION, AND YET…

Then, unfortunately, not long after John Paul II became pope in the fall of 1978, "The whole Lex project was put to death, without explanation, in 1981, after it had been approved by a specially convened international commission earlier in the year."[10] The long slide into restrictions, repressions, and silencing had begun, however, even earlier:

1. Already in the spring of 1979 the French theologian Jacques Pohier was silenced for his book When I Speak of God;
2. in July the book on human sexuality by a team of four American theologians commissioned by the Catholic Theological Society of America was condemned by the Vatican;
3. in September the Jesuit General Pedro Arrupe was forced to send a letter to all Jesuits saying that they may no longer publicly dissent from any papal position;
4. all fall severe accusations of heresy against Edward Schillebeeckx were recurrently issued in drum-beat fashion;
5. December 13-15, Schillebeeckx was "interrogated" by the Holy Office in Rome;
6. that same month writings of Brazilian liberation theologian Leonardo Boff were "condemned" (he was later silenced);
7. on December 18, the Holy Office issued a Declaration on Hans Küng saying he "can no longer be considered a Catholic theologian."

Pope John Paul II

Thus, in hindsight, the suppression of the Catholic Constitution (Lex Fundamentalis Ecclesiae) was no great surprise. Nevertheless, at the same time Pope John Paul II was pushing Human Rights in the civil sphere, and especially in international politics. In a way, this was a continuation of what Pope Paul VI had earlier called "New Thinking".[11] (This was long before Mikhail Gorbachev in the late 1980s borrowed the phrase "New Thinking" to popularize his new approach to Communism.) This "New Thinking" was characteristic of Vatican II, and was likewise supposed to characterize the subsequent revision of church law, the 1917 Code of Canon Law.

Pope John Paul II described this resultant shift in thinking, this "New Thinking" of Vatican II, in the following manner when promulgating the new Code of Canon Law [1983] for the Latin Church:

1. the Church seen as the People of God,
2. hierarchical authority understood as service,
3. the Church viewed as a communion,
4. the participation by all members in the three-fold munera [functions] of Christ [teaching, governing making holy], and
5. the common rights and obligations of all Catholics related to this, and
6. the Church's commitment to ecumenism.[12]

Father James Provost added further: "In addition to providing the basis for understanding the new canon law, these elements set an agenda for the church, an agenda which might be considered to form the basis for a kind of 'democratizing' of the church".[13]

III. AMERICAN CATHOLIC PRECEDENTS of DEMOCRACY and a CONSTITUTION…

Bishop John England (Click image for further info)

	Bishop John Carroll (Click image for further info)

As we saw in an earlier lecture, the American Church has precedents in the fostering of democracy in many ways by its first bishop John Carroll, and even more by Bishop John England with his Diocesan Constitution and Annual Convention. There is yet another interesting precedent for an important element of Democracy, Human Rights, the knowledge of which was lost for many decades. I am speaking of a Catholic twentieth-century Universal Declaration of Human Rights even before that of the United Nations in 1948. In fact, it fed into it.

In January, 1947, a committee made up of U.S. Catholic laity and bishops appointed by the "National Catholic Welfare Conference" (the national agency of the American Catholic Bishops) issued nothing less than a "Declaration of Human Rights",[14] almost two years before the United Nations proclaimed its "Universal Declaration of Human Rights" in December, 1948. In fact, the American Catholic Declaration was handed over to the "Committee on Human Rights of the United Nations," the chair of which was Eleanor Roosevelt. A comparison of the "American Catholic Declaration" (which with 50 articles is more detailed than the UN Declaration with 30 articles) and that of the United Nations reveals amazing similarities, some passages of the latter being even verbatim with that of the former. The Catholic document speaks of human "personal dignity....being endowed with certain natural, inalienable rights....The unity of the human race under God is not broken by geographical distance or by diversity of civilization, culture and economy..."

Here is a chapter of American Catholic history that was almost forgotten. After its initial impact,[15] no one seemed to remember or record it, until 1990. And yet this is a chapter of history that makes one proud of being an American Catholic. The American Catholic Church here took the lead in promoting human rights on a world-wide basis and probably had a significant influence in the drafting of the United Nations' 1948 "Universal Declaration of Human Rights".

Let me tell you how this lost chapter of an American Catholic contribution to Human Rights and to Democracy came to light. Dr. Gertraud Putz, an Austrian historian, noted how accidental and labyrinthine her discovery of the 1947 American document was. She wrote that she had in her research come across an article in a 1947 Austrian periodical, Die Furche, with a German translation of what looked like an American Catholic Declaration of Human Rights, but with no reference to the original. She then wrote:

The difficult search for the English text shall not remain hidden from the reader. Through a personal contact with Professor Johannes Schwartländer of the University of Tübingen, doubtless the most knowledgeable scholar of the history of human rights, I was directed to an American human rights expert, Professor Leonard Swidler in Philadelphia. The accident that he — who at first also knew nothing of the existence of this Declaration — is married to a historian with whom he discussed the matter made it possible that she then took up the search. In a letter dated April 18, 1990, she responded to my letter and explained the difficulty in finding the Declaration, for it had no listed author under which it could be indexed. However, the fact that Professor Arlene Swidler precisely at that time was giving a course on "American Catholic History" at Villanova University led her to search further, and she ended by writing: "However, I am quite sure I have found the important material by paging through the significant periodicals."[16]

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Footnotes:
1. Acta Apostolicae Sedis, 57 (1965), 988.
2. Ibid., 75 (1983), p. 556; Origins, 12 (1983), p. 631.
3. Cf. Pope John Paul II, Apostolic Constitution Sacrae disciplinae leges, in Code of Canon Law. Latin-English Edition (Washington, D.C.: Canon Law Society of America, 1983), p. ix.
4. James A. Coriden, "A Challenge: Making the Rights Real," in: Leonard Swidler and Herbert O'Brien (a pseudonym for protective purposes), A Catholic Bill of Rights (Kansas City: Sheed & Ward, 1988), p.11; also in The Jurist, 45,1 (1985).
5. Textus Emendatus, Vatican Press, pp.119-20, 123, cited in Peter Hebblethwaite, Pope Paul VI (New York: Paulist Press, 1993), p. 573.
6. Coriden, "A Challenge," p. 11.
7. Communicationes 1 (1969), pp. 77-100. Patribus synodi episcoporum habenda (Vatican: Typis Polyglottis Vaticanis, 1969), pp. 80, 79.
8. Report by Peter Nichols in The Times (London), July 6, 1971.
9. Communio et progressio, published in Austin Flannery, ed., Vatican Council II (Collegeville, MN: Liturgical Press, 1975), p. 332.
10. Coriden, "A Challenge," p. 11.
11. Paul VI used the phrase novus habitus mentis. Paul VI, allocution of November 20, 1965, Communicationes, I (1969), pp. 38-42.
12. James Provost, "Prospects for a More 'Democratized' Church," in: James Provost and Knut Walf, eds., The Tabu of Democracy within the Church, Concilium, 1992/5 (London: SCM Press, 1992), p. 132. See John Paul II's Apostolic Constitution Sacrae disciplinae leges, January 25, 1983; Acta Apostolicae Sedis, 75/2 (1983), p. xii.
13. Provost, ibid.
14. "A Declaration of Human Rights. A Statement Just Drafted by a Committee Appointed by the National Catholic Welfare Conference," The Catholic Action, XXIX (February 1947), pp. 4f. & 17; and "A Declaration of Rights. Drafted by a Committee Appointed by the National Catholic Welfare Conference," The Catholic Mind, XLV, Nr. 1012 (April 1947), pp. 193-196. A German translation appeared in "Eine Charta der Menschenrechte. Eine Denkschrift der Katholiken Amerikas," Die Furche, 8 (February 1947), pp. 4f. Both the original American and a German translation as well as an interesting analysis can be found in Gertraud Putz, Christentum und Menschenrechte (Innsbruck: Tyrolia Verlag, 1991), pp. 322-330, 388-397.
15. Cf. "Basic Schedule of Rights," Commonweal, XLV (February 14, 1947), p. 435; "NCWC on Human Rights," The N.C.W.C. News Service, LXXXVI (February 15, 1947), p. 538; Dies Villeneuve, "Recent Events," Catholic World, CLXIV (March, 1947), pp. 562f.
16. Putz, ibid., p. 325.
 

[Index of Commentaries by Prof Len Swidler]