Faith, Reason and Constitutionalism: Reflections Prompted by the Roman Catholic Church Papal Conclave of 2013

George Anastaplo

(Faculty Workshop, Loyola University Chicago School of Law, April 13, 2013)


            Faith, we can suppose, is likely to be guided to some extent by Reason, including that Reason grounded in Experience. Reason, we can also suppose, prudently makes use of the Faith of one’s time and place, especially if it is long established. Perhaps, we should suppose as well, the shaping of Faith by Reason may include quietly setting aside “revelations” that may have outlived their usefulness, if not even their initial plausibility (reminding us thereby of what can be made to “work” in a variety of circumstances).

A particularly instructive instance of a productive coordination of Faith and Reason may be seen in an episode recorded in Judges 6:36-40 (in the Hebrew Bible):

And Gideon said unto God, If thou wilt save Israel by mine hand, as thou hast said, Behold, I will put a fleece of wool in the floor; and if the dew be on the fleece only, and it be dry upon all the earth beside, then shall I know that thou wilt save Israel by mine hand, as thou hast said. And it was so: for he rose up early on the morrow, and thrust the fleece together, and wringed the dew out of the fleece, a bowl full of water. And Gideon said unto God, Let not thine anger be hot against me, and I will speak but this once: let me prove, I pray thee, but this once with the fleece; let it now be dry only upon the fleece, and upon all the ground let there be dew. And God did so that night, for it was dry upon the fleece only, and there was dew on all the ground.

It can be instructive for us here both that Gideon has to be “diplomatic” in revising his test and that the narrator can then matter-of-factly report that “God did so that night” (Judges 6:40).

Even more instructive, of course, may be what Gideon understood, from the start, about the usual (what we would call a “natural”) discrepancy as to where dew might and might not appear (that is, on the fleece, not on the ground), a discrepancy with which those familiar with, say, desert life could be expected to be familiar and which they routinely made use of to get water. By proceeding in the order he does Gideon offers God an opportunity to show His full power by providing two quite different results. Perhaps at least as important here may be the effects of this exercise upon the state of mind of Gideon’s companions, who are first reminded of where dew is likely to appear and not to appear.


            Thus, Gideon (by proceeding as he does) accommodates himself to what we might call physical reality as he develops his “political” program. Such accommodation by gifted leaders may be routinely seen among us. Consider, for example, what was done, in the Constitutional Convention of 1787, with the development of what we call the Electoral College that is critical to the choice of the President of the United States.

Political circumstances (including the level of communication among the thirteen States stretching along the East Coast of North America) had to be taken into account. The People at large could not be expected to know the political factors and movements throughout the Union, nor were there yet Countrywide political parties to guide their judgments and efforts. But they could be expected to know who among them (in their respective localities) were sensible men, men who in turn (like Cardinals in a Papal Conclave) could be expected to be reliably informed about the accomplishments and reputations of their counterparts elsewhere in the United States, information they could draw on as Presidential Electors who were obliged to “vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.”

Things become even more complicated (at least potentially, but rarely in practice over two and a half centuries), for it is further provided (in Article II, Section 1 of the Constitution of 1787 [and soon modified by the Twelfth Amendment in 1804, but not soon enough to save Alexander Hamilton’s life]) that the persons listed in each State by the Electors thereof are sent to Congress, where (it is directed),

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

 Whatever happens behind the scenes in lining up the necessary votes, the typical practice has been (for more than two centuries) to produce someone generally recognized as the President of the United States. It probably helped that the first man thus elevated was George Washington, just as it has helped Roman Catholics to believe that they do in their Papal Conclaves essentially what Jesus did in designating Peter as somehow his successor.


            It can be wondered, of course, what sense there may still be in long-established institutions created in drastically different circumstances. In the United States we have, for a people approaching one-third of a billion in numbers, a Constitution originally devised for a people of three to five million. And, of course, there have been extraordinary changes in modes of transportation and of communication.

There can be asked about the Electoral College the kind of question put about long-established religious institutions:  What sense does the System make now? Reservations about the Electoral College can be readily developed, especially when it is obvious that relatively few States are considered “in play” during the typical Presidential election. It is hardly likely that this system would continue to be used if the Constitution should be completely “updated.”

On the other hand, there are advantages to the centuries-old Electoral College system, including its tendency to provide a recognizable “winner” within hours of the closing of polls nationwide on Election Day. It also tends to reduce vote-fraud, since the margin of victory in a State is usually irrelevant. It may tend as well to encourage focusing the national campaign on fewer issues, perhaps making it easier for the Public to keep track of the relevant arguments.


            Issues similar to those reflected in our Electoral College arrangement may be seen in the reliance in recent centuries upon a Conclave to choose a Pope. Most Roman Catholics cannot be depended upon to have reliable information either about the underlying issues for the Church or about those best suited to deal with them. It can be debated, of course, what Roman Catholic arrangement would be best equipped to know what and who are needed.

The electorate, we have been reminded, is limited to Cardinals who have not turned eighty before the Conclave opens. We have also been reminded that all of the current Cardinals have been appointed either by Pope John Paul II or by Pope Benedict XVI. But surprises do show up from time to time, as was seen in what an elderly “caretaker” Pope did (after only a few months in office) in summoning the Second Vatican Council, a somewhat revolutionary enterprise that he himself could not have expected to live to see to its end.

Once the Conclave gets to work, it has two votes in the morning and two votes in the afternoon/evening. Two-thirds of the votes for a candidate are required in order to choose a Pope. The world at large is not supposed to learn what the Cardinals do and say to each other as the votes develop.


            There was, for a while recently, a rule that a majority vote would suffice in a Papal Conclave after a specified number of attempts. But it evidently came to be feared that this would lead to a simple majority, or a number close to that, holding out from the beginning until the time for majority rule arrived. And so the rule was changed back by Pope Benedict XVI to the two-thirds requirement in time for the most recent Conclave.

It can be wondered, of course, whether Divine Guidance is ever at work in a Papal Conclave (or, indeed, during any other serious efforts by human beings to make obviously momentous choices). An astute American priest, Andrew Greeley, could draw effectively on what he knew about Chicago machine politics when he described the previous two Conclaves. He could also be heard advocating a democratization of the Papal selection process.

Is there not something to be said, considering the powers of modern medicine to extend severely impaired life, for term limits for Popes? This is a safeguard that Father Greeley himself (after almost a decade in an accident-induced coma) can be taken to endorse. The resignation of Pope Benedict XVI may have been a salutary move in that direction.


            It might be useful, upon considering how Roman Catholic Popes and American Presidents have long been chosen, to notice (if only in passing) a radically different process. That is, an instructive challenge is offered here by the institution of the Dalai Lama which can be described in this fashion in Webster’s New Explorer Desk Encyclopedia (Merriam-Webster, Incorporated, 2003), p. 322:

Dalai Lama Head of the dominant order of Tibetan Buddhism. The first of the line was Dge-‘dun-grub-pa (1391-1475), founder of a monastery in central Tibet. His successors were regarded as his reincarnation and, like himself, manifestations of the Bodhisattva Aralokitesvara. The second head of the order established its base near Lhasa, and the third received the title Dalai (“Ocean”) from Altan Kahn. The Dalai Lama held temporal and spiritual power in Tibet after the Chinese were expelled in 1912. The 14th Dalai Lama, Bstan-‘dzin-ryya-mtsho (h. 1935), was enthroned in 1940 but fled to India in 1959 with 100,000 followers after a failed revolt against the Chinese, who had occupied Tibet since 1950. A revered figure worldwide, he was awarded the 1989 Nobel Peace Prize in recognition of his nonviolent campaign to end Chinese domination of Tibet.

Critical to this “phenomenon,” of course, is the understanding that each living Dalai Lama is the reincarnation of his immediate predecessor.

Various clues are relied on by the Tibetan Potentates who must discover the child born at the time the most recent Dalai Lama passed on. Visions and other guides are drawn on. It may be several years before the discovery is made, which might even be confirmed thereafter by how the child responds to objects that had belonged to the late Dalai Lama.

The reign of a Dalai Lama (there may be other Lamas elsewhere) is likely, of course, to be far longer than that of any Pope. This Tibetan system, which is in many respects quite unlike the Roman Catholic Papacy, somehow “works.” But, it is believed, the current Chinese government may attempt either to impede an effective search in Tibet or to sponsor a search of its own, thereby controlling the next “Dalai Lama” run.


            Still another means of deciding an issue, if not even determining the divine will in a matter, is to have recourse to the drawing of lots, which can sometimes seem to us a dubious reliance on Chance. This practice has been described thus in a Christian sourcebook (The Zonderman Pictorial Bible Dictionary [Zonderman Publishing House, 1963], p. 492):

The use of the lot to determine doubtful matters is very old and the practice of casting lots was common among the nations of antiquity:   Haman’s efforts to determine a lucky day to exterminate the Jews (Esther 3: 7); the detection of guilty Jonah by the pagan mariners (Jonah 1: 7); the gambling of the Roman soldiers for the garments of Jesus (Matthew 27: 35). See also Joel 3: 3; Nahum 3: 10; Obediah 11. Its use among the Jews, generally with religious intent, is mentioned in determining the scapegoat (Leviticus 16:8); assigning the land of Palestine among the tribes (Numbers 26: 55; Joshua 18:10; Acts 13: 19); selecting men for an expedition (Judges 1: 1-3, 20: 9); detecting a guilty party (Joshua 7: 14; I Samuel 14: 40-42); selecting the first king ( 1 Samuel 10: 20-21); dividing the returned priests into 24 courses (1 Chronicles 24: 3-19); determining the service of the priests in the temple worship (Luke 1: 5-9). In none of these instances is there a direct statement of the method or methods used in casting lots (but cf Prov. 16: 33). It was held in religious esteem by the covenant people and its use to determine God’s will was usually accompanied by prayer (Judges 1: 1-3; Acts 1: 24-26). Many scholars think that Urim and Thummim were used as lots.

It is then added (pp. 492-93):

Only in the choice of a successor to Judas Iscariot (Acts 1: 26: Matthias) is the use of lots by Christ’s followers mentioned. As a distinctly Jewish mode of seeking divine direction its use was appropriate for the occasion. With the coming of the Spirit at Pentecost to take direction of the affairs of the Church its use is never mentioned again.

            It should be noticed that an effective recourse to the drawing of a lot seems usually to have depended on a substantial narrowing of the field. Thus, it could not properly be used in a Papal Conclave if there should be taken seriously the notion that virtually all male Roman Catholics in good standing are eligible for the Papacy. Consider, on the other hand, how an impending recourse to a lottery in the Serbian Orthodox Church was described in November 2009 (followed by an account of how the Russian Orthodox Church currently proceeds in these matters):

The Holy Synod of Bishops will first convene the Holy Assembly which will then decide to initiate the proceedings of electing a new patriarch in a so-called Apostolic Vote. “At least two-thirds of metropolitans, active bishops, candidates for bishops who run dioceses for more than five years must attend, and those absent may delegate power of attorney to another participant,” said Jovan Janjic, a Belgrade-based analyst with the weekly NIN magazine. Each member of the assembly votes for the three candidates and the vote is repeated until the selection is narrowed to three. After balloting, names of the three top candidates with more than 50 percent of backing are put in three sealed envelopes. “It all becomes a lottery then,” Janjic said. The names of the three candidates are placed inside a Bible and after a holy service, a specially selected monk who prepares for the task through fasting and praying, takes the envelope from the Bible, shuffles the three names and pulls out one. The presiding bishop immediately takes the envelope, opens it in plain view of others and announces the name of the new patriarch. The so-called “Apostolic Vote” was introduced in 1967 as a move tailored to curb the influence of Communist authorities in the former Yugoslavia on the appointment of patriarchs. At the time authorities said the Holy Spirit should lead the hand of the monk therefore excluding all human interference. This voting system dates back to 1917 when the Russian Orthodox Church used it to pick Patriarch Tikhon, its first leader after the patriarchate was restored following a 200-year suppression. The Russian Orthodox Church did not use this method in January when it elected its new patriarch, Kirill, in a secret ballot with multiple candidates. Insiders say the lobbying and politicking between the candidates and their supporters is as fervent as in a U.S. or European style election campaign.

            It can be instructive to consider which public offices in the ancient Athenian democracy at its most powerful were allocated by lot and which were not. We should be reminded as well that there seems to be far more reliance on a recourse to lots in American public life than is generally recognized, especially when a community does not believe it can afford a run-off election for, say, the school board after a tie has been recorded. Then, of course, there may be an occasional quixotic attempt such as that made by me (on November 10, 2000) in letters to editors a few days after it was apparent that the Bush/Gore Presidential contest could become seriously divisive in its uncertainty (letters published at the time in several newspapers):

It is possible that our Presidential contest will remain “undecided” for weeks to come, partly because of uncertainties in Florida. If (a big “if”) prolongation of this standoff threatens to damage the country and to subvert the authority of the next Administration, would it not be prudent for the two major candidates to announce an immediate recourse by them to the drawing of lots to settle this matter? The Electoral College votes could thereafter be easily adjusted by their supporters accordingly. Would not this be a statesmanlike resolution of this “crisis” by both candidates, dramatizing their character and fitness and making more likely an era of national good will thereafter? This approach would best be taken before the official recount, including of the absentee ballots, is announced in Florida, thereby making less likely the risk of having it appear that the “loser” won. It is fortunate that the major candidates have roughly the same amount of popular support nationwide, making it much easier for the country to accept this kind of self-denying compromise. These candidates have long been extolled as pious patriots. Would not a voluntary recourse by them to the drawing of lots in these extraordinary circumstances, for which there are American legal as well as Biblical precedents, testify both to their faith in Providence and to their dedication to the common good? Certainly, this kind of resolution would be salutary as a reminder that what always unites us is much greater than what may chance to divide us from time to time.


            There are, of course, critics of how the Vatican seems to be run. I myself have had the impression, whenever I have entered Vatican City to work in its Library, that I was once more (after many decades) on an army base. Then, of course, there was the answer attributed to Pope John XXIII, upon being asked how many people work in the Vatican: “About half.”

But far more serious is what we have allowed to happen in the running of this Country. Clearly improper, for example, is the currently-stifling filibuster rule in the United States Senate, an insistence upon a “supermajority” rule that is not among the few such arrangements provided for by the Constitution (and a rule which actually stymies serious debate). This determined impropriety could be eliminated by a sensible motion, directed to the Vice-President as presiding officer of the Senate—a motion upon which he could so rule that that body could go forward thereafter to conduct its affairs in a manner clearly consistent with what the Constitution provides.

Also clearly improper is what we have allowed to happen in the way that the United States Supreme Court (with its generally undistinguished membership) conducts itself, acting in effect as a third branch of the national legislature. Among its improprieties is its insistence that it is authorized to pass routinely on the constitutionality of Acts of Congress, something clearly not provided for by the Constitution. On the other hand, it has (since at least 1938) surrendered its duty to oversee the development of the Common Law in the United States, a duty that its counterpart performs in Great Britain, always subject of course to the supervisory power of the Supreme Legislature of that Country.


            The tension between Faith and Reason examined on this occasion continues down to our day, not only in ecclesiastical matters but also in political matters. Elements of Faith among us may be seen in the vocabulary relied on in the United States Constitution. Particularly aspirational here, of course, is the Preamble to the Constitution which draws upon the principles invoked by the Declaration of Independence.

What is needed is not so much any reformation of the Constitution but rather an informed awareness of what is and is not already provided for by remarkably competent men in 1787. Perhaps the most serious institutional deficiency at the moment among us is the lack of any provision for an effective replacement virtually overnight if the membership of the United States House of Representatives should suddenly be incapacitated. Critical to a proper discussion of these and other problems is an effective freedom of speech.

Such empowerment of responsible citizens permits sustained critiques of the dubious devices we have allowed ourselves to be trapped by, including how we have come to depend on somewhat “unnatural” primaries and pro forma conventions. Consider, for example, an early critique of these developments that I presumed to make in 1976 in a newspaper article (published in an edited form by the Chicago Tribune, May 19, 1976), “The Obscured Virtues of Smoke-Filled Rooms” (with the version published thereafter  in the South Dakota Law Review appended to this Essay). There are, in short, serious problems with various changes in our political discourse and practices in recent decades, especially if they discourage responsible citizens from sustained engagement in sensible deliberations about the Common Good, deliberations in which prudent assessments may even be made about the proper relation, in various quite diverse circumstances, between Faith and Reason.
[[See, for a plausible account of what happened during the 2013 Papal Conclave, Stacy Meichtry and Alessandro Galleni, “Fifteen Days in Rome: How the Pope Was Picked,” Wall Street Journal, April 13-14, 2013, pp. C1-C2.]]


George Anastaplo, The Obscured Virtues of Smoke-filled Rooms

(Copied from George Anastaplo, “Legal, Education, Economics, and Law School Governance: Explorations,” 46 South Dakota Law Review 102, 251-53 [2001])

Our growing dependence upon primary election campaigns to choose Presidential candidates, instead of what are now disparaged as “brokered” conventions, poses certain risks for republican government in the United States.

George Washington announced in September 1796 his unavailability for a third term Presidency. It took several weeks for this information to reach all of the United States. Even so, time enough remained thereafter for selection in the various States of Presidential electors in early November, which electors met in their respective state capitals the following month to settle upon a President. This meant, in effect, that choices had to be made among men already quite well known to electorates in the various States. This meant, also, that there may have been considerable canvassing but very little campaigning.

It is fashionable to be concerned lest such an arrangement as this, of which the Electoral College is but a part, deprives the American people of their right to choose their leaders. But it might be useful to restate this concern by asking, What is the best way for our people so to arrange matters as to bring out the best in them and to make it most likely that their interests will be served? The larger the electorate, the more careful we should be to provide opportunities for experience and good judgment to play a part in the decisions made in our name.

Governor Jimmy Carter, we are told, is well on his way to the nomination of the Democratic Party. And yet he is barely known even to those conscientious citizens who make an effort to keep themselves informed about political affairs. Few seem to know where he stands on any of the major issues of the day; nor can one be reasonably reassured, as to what he is likely to do, by a long career of known public service. This is not to say that Mr. Carter is not a decent man or that he cannot be a good President. It is to say that we have as yet had little by which to judge him in a responsible manner.

Thus, we have moved in successive Presidential elections from an unwarranted reliance upon someone [Richard M. Nixon] whom the public should have known well to an impending captivation by someone [Jimmy Carter] who is for the most part unknowable. This may look to some like liberty and free choice—but it may really be an undue and necessary subservience to chance. Exclusive reliance on primaries, and thereafter on a direct popular vote electing Presidents, would be the way to demagoguery and is hardly the prudent way of a self-governing people.

The irresponsibility of the exploitation by the press and Congress of the Watergate affair and other official misconduct has become evident in the current campaign. No doubt, our misguided efforts in Indochina are also responsible, perhaps even primarily responsible, in that they too have inclined the public to distrust those upon whom they had relied. And so, general respect for government has been undermined; the inevitable sins of established figures are exaggerated; new names and new faces become unduly attractive.

No doubt, Mr. Carter will be obliged, if he should get the Democratic nomination, to address himself more to the issues than he has thus far. It is possible, of course, that a television-sated public may tire of him too before November. Governor Ronald Reagan, who has the knack of always making himself appear fresh, seems also to be profiting temporarily from the public disillusion with “Washington.” But is it not evident that both Mr. Carter and Mr. Reagan have been drawing upon, and effectively manipulating, both the restless George Wallace vote and a significant element (but only a minority) within their respective parties?

It still seems to me that President Gerald Ford is likely, despite his current difficulties, to get the Republican nomination. Indeed, it could turn out that Mr. Ford, a tested politician with known policies and character, will find it considerably easier to get elected than to get nominated. Certainly, sober Republicans must recognize the appeal which might permit the saber-rattling Mr. Reagan to be nominated would make it virtually impossible for him to get elected.

Be that as it may, nomination conventions once provided opportunities for responsible politicians (aware of instructive primary election results here and there, but not bound by them) to deal with one another as known qualities. But we have moved, especially since the 1960 John F. Kennedy campaign, toward substantial dependence upon primary results. This is a dangerous step toward reliance upon an uninformed and volatile public opinion and away from reliance upon disciplined parties and deliberative bodies as arbiters of our fate.

Much more can be said than we hear these days on behalf of “brokered” conventions—and for other long-established institutions which, although imperfect and hence subject to abuse, do provide our political good sense a fair chance to work.

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