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Journal of Catholic Legal Studies, Vol. 45, p. 131, 2007

Abstract

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They are ontological realities that must be recognized by the state and, as necessary or apt, regulated or assisted according to the principle of subsidiarity, properly understood.

This Article studies how the current failure in the United States to respect both the reality of group persons and the proper application to them of the principle of subsidiarity frustrates the work of families and churches in the concrete conditions of America today. In particular, the Article demonstrates how the Lasallian order, which for centuries has served the poor through education, has lost its ability to continue that work in the U.S. today. Law and policy shaped by respect for group persons and the principle of subsidiarity could, without violating the Establishment Clause as currently authoritatively interpreted, come to the rescue of family, church, and poor children. Catholic social doctrine points toward a limited state that serves not just individuals, including individuals in poverty, but the societies in which individuals reach the ontological perfections of which they are capable.

Disciplines

Constitutional Law | Jurisprudence | Legal History

Date of this Version

April 2007

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