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Genders and Sexualities in Histor y

The Schism of ’68

&DWKROLFLVP&RQWUDFHSWLRQDQGµ+XPDQDH9LWDH¶
LQ(XURSH

EDITED BY ALANA HARRIS

Genders and Sexualities in History

Series Editors
John Arnold
King’s College
University of Cambridge
Cambridge, UK

Sean Brady
Birkbeck College
University of London
London, UK

Joanna Bourke
Birkbeck College
University of London
London, UK
Palgrave Macmillan’s series, Genders and Sexualities in History, accom-
modates and fosters new approaches to historical research in the fields
of genders and sexualities. The series promotes world-class scholarship,
which concentrates upon the interconnected themes of genders, sexuali-
ties, religions/religiosity, civil society, politics and war.
Historical studies of gender and sexuality have, until recently, been
more or less disconnected fields. In recent years, historical analyses of
genders and sexualities have synthesised, creating new departures in his-
toriography. The additional connectedness of genders and sexualities
with questions of religion, religiosity, development of civil societies, poli-
tics and the contexts of war and conflict is reflective of the movements in
scholarship away from narrow history of science and scientific thought,
and history of legal processes approaches, that have dominated these
paradigms until recently. The series brings together scholarship from
Contemporary, Modern, Early Modern, Medieval, Classical and Non-
Western History. The series provides a diachronic forum for scholarship
that incorporates new approaches to genders and sexualities in history.

More information about this series at

http://www.palgrave.com/gp/series/15000
 Alana Harris
Editor

The Schism of ’68

Catholicism, Contraception and Humanae Vitae
in Europe, 1945–1975
Editor
Alana Harris
King’s College London
London, UK

Genders and Sexualities in History

ISBN 978-3-319-70810-2 ISBN 978-3-319-70811-9 (eBook)
https://doi.org/10.1007/978-3-319-70811-9

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© The Editor(s) (if applicable) and The Author(s) 2018

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Cover credit: Cover image used with kind permission of Paddy Summerfield from The
Oxford Pictures 1968–1978 (Dewi Lewis Publishing, 2016)

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For my parents, who married before the encyclical
and lived and loved in its aftermath.
 Series Editors’ Preface

The Schism of ’68: Catholics, Contraception and ‘Humanae Vitae’ in

Europe, 1945–1975 is a genuinely groundbreaking collection, where
international and interdisciplinary new scholarship explores the relation-
ship between Roman Catholicism and global developments in sexual-
ity and women’s reproductive rights in the ‘radical 1960s’. The authors
examine the ways in which ordinary Roman Catholic men and women,
as well as the Vatican and the news media across Europe and the world,
responded to the ‘sex problem’ presented by the development of the
anovulant pill in the late 1950s and its rejection as an acceptable form of
birth regulation through Pope Paul VI’s infamous encyclical Humanae
Vitae in 1968. The collection brings together historians of gender, sexu-
ality and modern Catholicism to discuss the differing reactions to and
reception of the Humanae Vitae encyclical by Catholic laity and clergy,
episcopacies, medical professionals and media outlets across Europe. In
demonstrating how these debates, and the Roman Catholic Church’s
important role within them, interacted with the social and sexual coun-
tercultures of the 1960s, the collection makes an essential contribution­
to a growing historiography of radical social change in the 1960s. It
also provides new perspectives and approaches that enrich the historiog­
raphy of sexuality, of gender, and of religion. In common with all vol-
umes in the ‘Genders and Sexualities in History’ series, The Schism of ’68:

vii
viii    Series Editors’ Preface

Catholics, Contraception and ‘Humanae Vitae’ in Europe, 1945–1975

presents a multifaceted and meticulously researched scholarly collection,
and is a sophisticated contribution to our understanding of the past.

John Arnold
Joanna Bourke
Sean Brady
 Acknowledgements

This volume was conceived through a Facetime conversation with

Wannes Dupont (then residing in Antwerp) in late 2015. A mutual aca-
demic friend had suggested, in view of our shared research interests in
religion and sexuality, that we would have a lot to talk about. We cer-
tainly did, and the result was a workshop in September 2016 held at
King’s College London and attended by many of the contributors to
this volume. Through Wannes’s long-standing role as co-chair of the
Sexuality Network of the European Social Science History Conference,
and co-organiser with me of this London workshop, I wish to acknowl-
edge him formally as the driving force behind the identification of those
with the necessary interest and expertise to participate in this anthology.
I am incredibly grateful for his intellectual insights and support amidst
the life transitions and professional changes he has negotiated during the
past two years, which have seen him relocate between three academic
institutions and multiple countries.
In facilitating the comparative conversations that form the basis of this
volume, I thank the Faculty of Arts and Humanities at King’s College
London who provided financial support for the workshop and travel
expenses to bring the participants to the UK. Alongside those writing in
this collection, there were a number of other presenters whose contribu-
tion I wish to recognize, including Jim Bjork, David Geiringer, Carmen
Mangion, Francisco Molina, Caroline Sägesser, Margaret Scull, Andrea
Thomson, and Cécile Vanderpelen. For research support undergirding
the introduction and my own chapter, thanks are given to Hannah Elias

ix
x    Acknowledgements

and Maya Evans. Dagmar Herzog was a fabulous supporter and advocate
in the complicated closing stages of this volume. Finally, my love and
thanks to the two men in my life who have lived through the twists and
turns of the manuscript compilation process and are always encourag-
ing, understanding and productively distracting—Timothy Folkard and
Sebastian Harris-Folkard. Thanks darls.
 Contents

1 Introduction: The Summer of ’68—Beyond the

Secularization Thesis 1
Alana Harris

Part I To the Barricades

2 Humanae Vitae: Catholic Attitudes to Birth Control

in the Netherlands and Transnational Church Politics,
1945–1975 23
Chris Dols and Maarten van den Bos

3 Of Human Love: Catholics Campaigning for Sexual

Aggiornamento in Postwar Belgium 49
Wannes Dupont

4 ‘A Galileo-Crisis Not a Luther Crisis’? English Catholics’

Attitudes to Contraception 73
Alana Harris

xi
xii    Contents

Part II Episcopal Controversies

5 Religion and Contraception in Comparative

Perspective—Switzerland, 1950–1970 99
Caroline Rusterholz

6 Attempted Disobedience: Humanae Vitae in West

Germany and Austria 121
Katharina Ebner and Maria Mesner

Part III Christian Science and Catholic Conservatism

7 The Politics of Catholic Medicine: ‘The Pill’ and

Humanae Vitae in Portugal 161
Tiago Pires Marques

8 Humanae Vitae, Birth Control and the Forgotten

History of the Catholic Church in Poland 187
Agnieszka Kościańska

Part IV Covering the Controversy

9 A Kind of Reformation in Miniature: The Paradoxical

Impact of Humanae Vitae in Italy 211
Francesca Vassalle and Massimo Faggioli

10 Love in the Time of El Generalísimo: Debates About

the Pill in Spain Before and After Humanae Vitae 229
Agata Ignaciuk

11 Reactions to the Papal Encyclical Humanae Vitae:

The French Conundrum 251
Martine Sevegrand
 Contents    xiii

Part V Church, State and Contraception

12 The Best News Ireland Ever Got? Humanae Vitae’s

Reception on the Pope’s Green Island 275
Peter Murray

13 Catholicism Behind the Iron Curtain: Czechoslovak

and Hungarian Responses to Humanae Vitae 303
Mary Heimann and Gábor Szegedi

14 Afterword—Looking for Love 349

Dagmar Herzog

Index 365
 Editor and Contributors

About the Editor

Alana Harris is a Lecturer in Modern British History at King’s College

London. She is the author of Faith in the Family: A Lived Religious
History of English Catholicism, 1945–1982 (2013) and has published
numerous articles on the intersections of gender, sexuality, devotional
cultures and material religion. She is currently researching the changing
attitudes of English Catholics, and particularly medical practitioners, to
contraception across the twentieth century.

Contributors

Maarten van den Bos is General Secretary of the Banning Association,

a platform for debate on religion, politics, and modern society associ-
ated with the Dutch Labour Party. He has published extensively on the
history of Dutch Catholicism, including Verlangen naar Vernieuwing.
Nederlands katholicisme, 1953–2003 and a book on the history of
the Dutch section of the international Catholic peace movement,
Pax Christi: Mensen van goede wil. Pax Christi 1948–2013.
Chris Dols studied history in Nijmegen, Amsterdam, and Dundee
(where he did his doctorate) and is an archivist at the Centre for the
Heritage of Religious Life in the Netherlands. He has published exten-
sively on religious transformations in the Dutch Catholic community.

xv
xvi    Editor and Contributors

Recent publications include Fact Factory. Sociological Expertise and

Episcopal Decision Making in the Netherlands 1946–1975, and Pastoral
Sociology in Western Europe, 1940–1970 (Leiden/Boston, co-edited with
Herman Paul).
Wannes Dupont is Assistant Professor of Modern European History
at Yale-NUS College, having previously held a Cabeaux-Jacobs
Fellowship at the Belgian American Educational Foundation (Yale) and
at the Research Foundation Flanders (Antwerp). His recent publications
address various aspects of the history of sexuality and biopolitics, includ-
ing a chapter in Anti-Gender Campaigns in Europe. Mobilizing Against
Equality and co-authorship of Verzwegen Verlangen (Hidden Desires,
2017).
Katharina Ebner is a Research Associate at the Chair of Moral
Theology at the University of Bonn. She is a Catholic theologian work-
ing on questions of religion, family, sexuality and gender in the twenti-
eth century. Her doctoral thesis on religious references in parliamentary
debates on homosexuality is currently in press.
Massimo Faggioli is a Professor in the Department of Theology and
Religious Studies at Villanova University. His publications in English
include the books Sorting Out Catholicism. Brief History of the New
Ecclesial Movements (2014); A Council for the Global Church. Receiving
Vatican II in History (2015), and Catholicism and Citizenship: Political
Cultures of the Church in the Twenty-First Century (2017).
Mary Heimann is Chair in Modern European History and Director
of International Relations at Cardiff University in Wales. She is the
author of Czechoslovakia: The State that Failed and Catholic Devotion in
Victorian England.
Dagmar Herzog is Distinguished Professor of History and Daniel
Rose Faculty Scholar at the Graduate Center, City University of New
York. She has published extensively on the histories of sexuality and
religion in Europe and the United States, including Sexuality in Europe:
A Twentieth-Century History (2011). Her most recent book is Cold
War Freud: Psychoanalysis in an Age of Catastrophes (2017), and she is
currently working on a project entitled Unlearning Eugenics: Sexuality,
Reproduction, and Disability in Post-Nazi Europe (forthcoming 2018).
 Editor and Contributors    xvii

Agata Ignaciuk obtained her Ph.D. in Women’s and Gender Studies at

the University of Granada, Spain and is a NCN POLONEZ 2—Marie
Skłodowska-Curie COFUND fellow at the Institute of Ethnology and
Cultural Anthropology of the University of Warsaw and associate of the
Department of the History of Science, University of Granada. She has
recently published Anticoncepción, mujeres y género. La píldora en España
y Polonia (1960–1980) (with Teresa Ortiz-Gómez, 2016).
Agnieszka Kościańska received her Ph.D. (2007) and her habilita-
tion (2015) in ethnology/cultural anthropology from the University
of Warsaw, Poland. She is an Associate Professor in the Department of
Ethnology and Cultural Anthropology, University of Warsaw and a sen-
ior researcher in a HERA grant (Cruising the 1970s: Unearthing Pre-
HIV/AIDS Queer Sexual Cultures). Her new monograph is entitled To
See a Moose. The History of Polish Sex Education from the First Lesson to the
Internet (in Polish, 2017).
Tiago Pires Marques obtained his Ph.D. in History at the European
University Institute (2007) and has been a FCT Investigator at the
Centre for Social Studies (University of Coimbra) since 2014. His socio-
historical research sits at the intersections of the history of medicine, law
and religion, and his latest co-edited publication is Género e interioridade
na vida religiosa (2017).
Maria Mesner teaches history at the Institute of Contemporary History
at the University of Vienna, heads the Kreisky-Archives and is a co-editor
of Österreichische Zeitschrift für Geschichtswissenschaften (Austrian Journal
for Historical Studies). Alongside various volumes on de-nazification and
reproduction, she has authored two monographs on reproductive history
and numerous articles on the contraceptive, gendered and political his-
tory of Austria (and the US).
Peter Murray is a Lecturer in Sociology at Maynooth University. His
book Facilitating the Future? US Aid, European Integration and Irish
Industrial Viability, 1948–73 was published in 2009, and he is the co-
author (with Maria Feeney) of Church State and Social Science in Ireland:
Knowledge Institutions and the Rebalancing of Power, 1937–73 (2016).
Caroline Rusterholz is SNSF Postdoc Fellow and Associate Research
Fellow at Birkbeck University, London. Her research interests cover the
xviii    Editor and Contributors

fields of the histories of Switzerland, Britain and France in the twentieth

century. She is interested in the social history of medicine, the history of
sexuality and reproduction, and the history of the family.
Martine Sevegrand is a historian. In 1994, she defended her doctoral
thesis on French Catholics and birth control (1898–1968), later pub-
lished as Les enfants du bon Dieu (1995). She has had a dozen books
published, including edited letters sent to Abbé Viollet on sexual prob-
lems (1942–1943) and Vers une église sans prêtres. La crise du clergé sécu-
lier en France (1945–1978) (2005). She is an associate member of the
CNRS research group on Societies, Religions and Secularism.
Gábor Szegedi is a Postdoctoral Researcher at Masaryk University in
Brno, working on expert knowledge and sexuality in Hungary under
state socialism. Previously a research fellow at the Vienna Wiesenthal
Institute, he holds a Ph.D. in Comparative History from the Central
European University, Hungary.
Francesca Vassalle is a Doctoral Candidate in the History Department
at The Graduate Center, City University of New York, where she is com-
pleting a dissertation on the history of contraception in post-fascist Italy
from 1943 to 1978.
 Abbreviations

CA Catholic Action, defined by Pope Pius XI in 1927 as

‘the participation of the laity in the apostolate of the
hierarchy’
CC  Casti Connubi (Of Chaste Wedlock), Encyclical of
Pope Pius XI, 31 December 1930
GS  Gaudium et Spes (Joy and Hope), Pastoral Constitution
on the Church in the Modern World, Promulgated by
Pope Paul VI, 7 December 1965
HV  Humanae Vitae (Of Human Life), Encyclical of Pope
Paul VI, 25 July 1968
LG  Lumen Gentium (Light of the Nations), Dogmatic
Constitution in the Church, promulgated by Pope
Paul VI, 21 November 1964
Pontifical Commission Pontifical Commission on Population, Family and
Birth, established by Pope John XXIII, and expanded
by Pope Paul VI (1963–66)

xix
 List of Figures

Fig. 2.1 Cardinal Alfrink and Pope Paul VI, in an ironic hippy vision
of other unlikely peacemakers, and to the tune of the
Beatles’ 1967 hit. Published in Elsevier Magazine,
8 August 1970 (Reproduced with kind permission of
KDC–KLiB Nijmegen) 40
Fig. 4.1 John Ryan, ‘Drawing it fine’ cartoon: ‘Encyclical?
What encyclical?’ Catholic Herald, 2 August 1968, p. 1
(Reproduced with kind permission of Isabel Ryan) 81
Fig. 6.1 Members of the ‘Catholic Opposition’ in their editorial
office during the Katholikentag in Essen (1968). Pictured
are editorial staff Ralf Driver, Gottfried Neuen,
Willi Ingenhoven, and a visitor (Reproduced with kind
permission of Fotosammlung Hans Lachmann, Archiv
der Evangelischen Kirche im Rheinland, Düsseldorf) 127
Fig. 6.2 The protest banner ‘sich beugen und zeugen’ (submit and
procreate) displayed during a panel discussion at the
Katholikentag in Essen (1968) (Reproduced with kind
permission of Fotosammlung Hans Lachmann, Archiv der
Evangelischen Kirche im Rheinland, Düsseldorf) 133
Fig. 7.1 Cover of a satire by Jose Vilhena on the reception of the
pill in Portugal within various social settings (Reproduced
with kind permission of Luis Vilhena’s estate) 173

xxi
 CHAPTER 1

Introduction: The Summer of ’68—Beyond

the Secularization Thesis

Alana Harris

In 1960, a year before the introduction of Searle’s contraceptive pill

‘Conovid’ to the British market,1 the married layman, Taunton school-
master and co-founder of the annual ‘Catholic People’s Weeks’ (first held
at Wadham College, Oxford in 1945) published Sex and the Christian.2
Produced within the Burns and Oates ‘Faith and Fact’ series, this schol-
arly but highly accessible pamphlet advocated a Christian approach to
sex3 and the ‘formation of a solid doctrine of sexuality based on the facts
of revelation and of science’.4 As Trevett opined in the opening pages:

We have had enough of Sunday piety and the Christian-shut-up-in-the-

castle mentality. We cannot go on forever trying to reconcile papal encyc-
licals on marriage with the Hollywood code by which most of our friends
more or less live. … Mere pious exhortation, mere negative warnings are
useless against this sort of barrage. We must look for weapons in a better
armoury. Peter Maurin never tired of calling on Catholics, clerical and laity,
to bring out what he would not surely call, were he alive, the ‘nuclear’
forces of the Church’s doctrine. Only truth can shatter falsehood, only the
dynamic force of revelation can bring all that is genuine and good in the

A. Harris (*)
King’s College London, London, UK
e-mail: alana.harris@kcl.ac.uk

© The Author(s) 2018 1

A. Harris (ed.), The Schism of ’68, Genders and Sexualities in History,
https://doi.org/10.1007/978-3-319-70811-9_1
2 A. Harris

modern desire for a human and humane approach to love and sex into the
great creative and redemptive synthesis which our Lord has achieved for
our race. If this book can give a few pointers to this living spring of doc-
trine, it will have served its purpose.5

In chapters surveying sources as diverse as the Kinsey report and the

work of Jung, coupled with sacramental theology and justified with the
quip that ‘the patron of the Christian sexologist is not the ostrich’,6
Trevett was representative of a reforming strand of progressive theologi-
ans, confessors, doctors, psychologists and educated laity in Britain, but
most particularly on the Continent, seeking to present ‘Catholic truth in
the scientific age’. As Trevett surmised:

The sex problem is one of the most acute of our time; it offers the
Christian a great opportunity. He must not think he has answered every
question by quoting Canon Law. Law is no substitute for theology, still
less for love.7

This volume surveys the ways in which ordinary Catholic men and
women, as well as the Vatican and the news media across Europe and
the world, responded to the intensification of the ‘sex problem’ pre-
sented by the development of the anovulant pill in the late 1950s
and its rejection as a licit form of birth regulation through Pope Paul
VI’s infamous encyclical Humanae Vitae (HV) on 25 July 1968. That
Reginald Trevett’s call for the prioritization of the experiences of the
laity over male celibates continued to speak years later into this febrile
debate—despite the author’s clear rejection of artificial barrier contracep-
tion and cautious sanction of the Knaus-Ogino or ‘rhythm method’8—is
hinted at by the photograph on the front cover of this edited collection.
Taken in the Oxford University Parks in the Summer of 1968 by Paddy
Summerfield, then a young man wrestling (as many within his genera-
tion) with the implications and actualities of the ‘sexual revolution’ and
the socioeconomic changes wrought by affluence,9 the young woman
sunbathing, reading and musing is evocative of the many enquiring
Christians in the 1960s whose loyal dissent led to an irreparable rift in
the church. It is their attempts to reconcile their faith with, as Trevett
called it, ‘the “sexual climate” of our times’,10 and their anguished
engagement with and interrogation of the papal prohibition, which form
the subject of this book.
 1 INTRODUCTION: THE SUMMER OF ’68 … 3

This edited collection brings together historians of gender, sexuality

and modern Catholicism to discuss the differing reactions to and recep-
tion of the HV encyclical by Catholic laity and clergy, episcopacies,
medical professionals and media outlets across Europe. It situates the
Vatican’s highly controversial determination that the use of ‘artificial’
contraception by Catholics is ‘intrinsically wrong’11 within the longer
trajectory of debates about ‘birth control’ and the role of sex within
companionate marriage emerging since the Second World War. In dem-
onstrating how these debates, and the Catholic church’s important role
within them, interacted with the social and sexual countercultures of the
1960s, it seeks to make an essential contribution to a growing historiog-
raphy exploring ‘around ’68’. It also aims to contextualize and illumi-
nate a lived history of the Second Vatican Council (1962–1965) and its
afterlife, so often written from a predominantly theological perspective,
by exploring the gendered, material and metaphysical grounds for heated
opposition to and reinterpretation of the Vatican ruling. Common
to these historiographical interventions is a focussed interrogation of
the ‘secularization thesis’ as a descriptive and explanatory paradigm,12
explored through the comparative perspective of fourteen European
case studies. The composite picture of this geographically expansive
and thematically broad enquiry illuminates the complex and divergent
ways in which evolving mentalities about marriage, sexuality and repro-
duction, as well as conservative reactions (including HV itself and its
interlocutors), had long histories, resonated with particular national cir-
cumstances, and were relayed through transnational networks of activists
and intellectuals. The attempts by liberal, progressive Catholics to marry
the insights of science, sociology and psychology with church teachings
and sacramental theology culminated, ultimately, in an irreconcilable rent
within the church, reinforced by the swing towards moral conservatism
throughout Europe in the decade that followed. This was intensified
through the ‘cultural wars’ which played out through the papacy of
John Paul II and his ‘theology of the body’ that Herzog discusses in the
Afterword. On the cusp of the fiftieth anniversary of HV, these theologi-
cal tensions remain unresolved, as the recent comments of Pope Francis
demonstrate.13 Yet for those Catholics who remained within the church
after the furore, at least 78% of whom today support the use of contra-
ceptives,14 they have found their own solutions and ethical resolutions in
living and loving after the encyclical.
4 A. Harris

Setting the Scene to the Spiritual Crisis of ’68:

Vatican II and the Pontifical Commission
The Second Vatican Council, the twenty-first ecumenical council of
the Roman Catholic church, was announced by Pope John XXIII on
25 January 1959 and convened, after four years of preparation, on 11
October 1962. Differing from previous Councils held to combat heresy
or hone doctrinal propositions, this gathering in Rome of about 2500
bishops from around the world was centred on a programme that the
Pope defined as aggiornamento (updating). In his opening address, the
Pope denounced those ‘prophets of doom’ continually warning that
the modern world is ‘full of prevarication and ruin’.15 Instead, he insisted
that at the heart of the conciliar agenda was ‘Christ … ever resplend-
ent as the centre of history and life’ and that ‘by bringing herself up to
date where required, and by wisely organizing mutual cooperation, the
Church will make individuals, families and peoples really turn their minds
to heavenly things.’16
The Council ran over four sessions until 8 December 1965, the last
three sessions under the leadership of Pope Paul VI, and ratified sixteen
documents immensely affecting most areas of the Catholic church’s self-
definition and identity. One of the foremost religious chroniclers of the
Council, Giuseppe Alberigo, has evaluated the Council’s significance as
‘the most important event in the history of the Roman Catholic church
since the Protestant Reformation’.17 The Council’s pronouncements
on biblical scholarship; the sanction given to Mass in the vernacular;
the nature of the church and the pivotal part played by the laity; and
the encouragement given to ecumenism and interreligious dialogue are
important components justifying such an assessment. For present puroses,
however, beyond the so-called spirit of the Council and expectations of
reform that it generated,18 two conciliar documents were mobilized,
particularly within the heated debates explored within this volume. The
first, the twinned and still contentious concepts of conciliarism and col-
legiality, stemmed from the Dogmatic Constitution on the Church
[Lumen Gentium (LG), 21 November 1964]. This document implicitly
held that there are checks on papal power through the greater authority
of a council of bishops over one bishop (even the Bishop of Rome) and
that the Pope governs the church in collaboration with the bishops of
local churches, respecting their proper authority and autonomy.19 Into
this context, the substance of what the Second Vatican Council had to
 1 INTRODUCTION: THE SUMMER OF ’68 … 5

say about ‘Fostering the nobility of marriage and the family’20 within the
Pastoral Constitution on the Church in the Modern World [Gaudium et
Spes (GS), 7 December 1965] emerged as a pivotal touchstone in seek-
ing to interpret Paul VI’s encyclical three years later.21 Controversy then,
as now, turned on paragraphs §47–52,22 and in particular §50, which
eschewed discussion of the ‘primary’ and ‘secondary’ ends of marriage,
bypassing the 1930 encyclical Casti Connunbii’s (CC) adjudication that
the conjugal act was intrinsically tied to procreation, with unitive love a
subsidiary good23 and women subservient to their husbands.24
The discussion of birth control within this section of GS, collected
under the heading ‘some problems of special urgency’, was concise, cir-
cumspect, even cryptic in its exhortation to ‘responsible parenthood’.
Confined to one sentence, it held: ‘sons of the Church may not under-
take methods of birth control which are found blameworthy by the
teaching authority of the Church in its unfolding of the divine law’.25
This statement was necessarily conditional and circumscribed as John
XXIII had established, following the questions raised at the Council in
1963, a separate commission to discuss the issue. Initially a secret gath-
ering of six European laymen, it met in Louvain in October 1963 for
reasons explored more fully in Dupont’s chapter.26 What would become
the Pontifical Commission on Population, Family and Birth (hereafter
the Pontifical Commission) was expanded under the aegis of Paul VI to
include 72 members from five continents, encompassing theologians,
physicians and psychologists, demographers, economists and sociologists,
as well as married laity and an executive committee of 16 bishops.27 The
intricacies of the Pontifical Commission’s deliberations between 1964
and 1966 have been authoritatively reconstructed by Time magazine cor-
respondent Robert Blair Kaiser, who contemporaneously covered the
happenings in Rome28 and later penned The Encyclical That Never Was
(1985). His eminently readable history, drawing upon participant inter-
views as well as archival sources, explained the process behind the forma-
tion of the Commission’s final report (never published, but leaked to the
media in the spring of 1967)‚29 which recommended that ‘the regula-
tion of contraception appears necessary for many couples who wish to
achieve a responsible, open and reasonable parenthood’30 and that the
use of contraceptives or ‘artificial intervention’ (adjudged against the cri-
teria of ‘generous’ and ‘responsible fruitfulness’) is a natural extension
of the calculated sterile period sanctioned by Pope Pius XII.31 As 64 of
the 69 voting members approved this document, it became known as
6 A. Harris

the ‘Majority Report’, and its sensationalized, global circulation in April

1967 raised expectations of liberalization of the church’s teaching. This
was despite the demurrer of Commission member John Ford SJ who,
with the assistance of Thomistic philosopher Germain Grisez, drafted
a dissenting working paper signed by three other theologian priests
(including its President and head of the Curia, Cardinal Ottaviani, and
the papal theologian Bishop Colombo).32 What became known as the
‘Minority Report’ formed the basis of the ‘Magisterium’s reply’ in the
shape of HV, issued a year later and disregarding the informed delibera-
tions and express recommendations of the experts within the Pontifical
Commission. In strident terms, and with question marks surrounding
its status as infallible teaching, the encyclical held that in accordance
with natural law ‘each and every marital act must of necessity retain its
intrinsic relationship to the procreation of human life’ (§11), that use of
any form of birth control other than the ‘infertile period’ was unlawful
(§14), and that the consequences of artificial birth control are ‘marital
infidelity and a general lowering of moral standards’ (§17).
Given the nature of the Second Vatican Council as an epochal,
global mass media event, and the combustive issues considered by the
Pontifical Commission which touched upon the intimate lives of bil-
lions of Catholics around the world, it is not surprising that both
events have generated a formidable literature in multiple languages.33
Nevertheless, as Cummings, Matovina and Orsi have recently observed,
debates about the Council’s ‘meanings, and more broadly its role in
modern Catholicism and in global history, have largely proceeded via
close theological study of its authoritative documents’.34 Evaluating
the changes effected in this period of exhilarating reform and dizzy-
ing renewal, and the role of HV as a lightning rod for debates then
(and now) about biopolitics and the legacies of the 1960s,35 most of
the existing literature is intensely polarized and personally invested in
evaluations of ‘rupture’ or ‘continuity’ within a theological hermeneu-
tic seeking to explain the fortunes of Catholicism in the subsequent
decades.36 This collection, by using a comparative methodology which
probes the particular, national histories of the reception of the Council,
reactions to the encyclical, and longer-term developments in the soci-
oeconomic and sexological framings of marriage, family, and sexuality,
seeks to offer a way through this interpretative impasse. In clusters of
chapters around the themes of overt, politicized activism; the differing
 1 INTRODUCTION: THE SUMMER OF ’68 … 7

but also intersecting responses of national episcopacies; the impor-

tance of Catholic doctors; and the dialogue between faith, medi-
cine and the social sciences, a rich and textured mosaic emerges that
illustrates the dynamism and creativity of progressive opinion within
Catholic Europe across the post-war period. Crucial players in shap-
ing and reflecting this variegated response were the media, and varying
church–State relations, spanning from the communist East and social
democratic nations, through to the resilient authoritarian regimes of
Mediterranean Europe. The case studies commissioned, many offer-
ing the first sustained discussion of these issues, offer close-grained,
experiential histories of the church in all its transnational and relational
complexity. Its aim, taking up the challenge that Dagmar Herzog set
nearly a decade ago, is to ‘integrate histories of sex and religion’37 and
use ‘each unique national case …to see the others in a new light and to
challenge the prevailing explanatory frameworks’.38 Each chapter pro-
vides an overview of the place of Catholicism in that national setting,
alongside a brief survey of its sexual landscape after the Second World
War and into the 1960s. Most explore the ways in which national epis-
copacies, and key theological commentators, managed the thwarted
expectations of the faithful in the wake of July ’68, yet they also offer,
where possible, path-breaking insights into the reactions of the laity—
through correspondence, concerted resistance campaigns, combative
publications, scholarly interventions and media coverage. Admittedly,
these perspectives may often be those of an educated, articulate and
self-confident middle class, competing with (or complementing) the
arcane theological abstractions of ‘natural law’ and adjudications about
the ex cathedra status of the document by a clerical elite. Nevertheless,
most chapters also offer glimpses of the ‘ordinary person in the pew’
(or leaving the ecclesial threshold), be they correspondents writing in
halting English and poor grammar to the Archbishop of Westminster
or the views of Roman working-class mothers recorded by sex reformer
Maria Luisa Zardini De Marchi. In other chapters, we see contempora-
neous Catholic debates conjoined (or quarantined) from the political
tumult on the streets, be that in Paris or in Prague. HV represented a
‘spiritual’ crisis or ‘religious’ reformation in a year of revolutions across
the Continent, but the cleavages within the church that it revealed were
of long-standing gestation, and its aftershocks continue to play into the
present.
8 A. Harris

Narrating the Sixties:

Secularization and the Sexual Revolution
In his most recent, magisterial and comparative survey of European
Catholic activists seeking to transform society in accordance with the
precepts of the Second Vatican Council, and as a complement to his
earlier The Spirit of ’68 volume,39 Gerd-Rainer Horn has noted the pro-
pensity of historians of the 1960s and 1970s to narrate the social and
cultural transformations of these decades as ‘virtually exclusive secu-
lar affairs’.40 His explanation for this oversight, indeed the marked
historiographical silence, is that ‘today’s historians mostly hail from the
secular Left and thus have neither the ideological arsenal of tools nor the
relevant political background and interest to discover a religious under-
current of radical change which appeared to go against the grain.’41 This
observation is certainly true of the first wave of sustained scholarship
about the 1960s, epitomized by Arthur Marwick who confined discus-
sion of religion to a mere three pages,42 and concluded that ‘it has to be
stated that throughout the sixties the Catholic Church tended to oper-
ate as a centre of opposition to all the great movements aiming towards
greater freedom for ordinary human beings’.43 Yet more recent histories
of the 1960s continue, for the most part, to ignore the role played by
religious actors in the utopian activism, synchronic social movements
and sexual reconfigurations of the period,44 focussing instead on ques-
tions of periodization and Eurocentrism.45 Mark Donnelly, for example,
in his revisionist history of the sixties gave but two pages to the religious
transformations of the period,46 concentrating on structural changes
such as the ‘laws on personal morality [and] levels of Christian church
attendance’ whilst conversely concluding that although some individuals
were ‘swinging’, ‘millions more saw little difference in the ways that they
experienced or imagined their daily lives’.47 A notable exception is found
in Gerard DeGroot’s The 60s Unplugged where, within a chapter entitled
‘Wilted flowers’, he described the deliberations of Pope Paul VI and
reactions to HV, with a focus on the contrast between Latin America’s
embrace of the prohibition on birth control as a counter to American
neo-imperialist family planning agendas supplanting developmental aid.48
This secularist agenda also characterized much of the historiogra-
phy surrounding contraception and sexuality in the post-World War II
period, such as Hera Cook’s The Long Sexual Revolution, which situ-
ates its sole reference to HV 49 in an unwavering characterization of
 1 INTRODUCTION: THE SUMMER OF ’68 … 9

religion as an inherently and unrelentingly repressive force and the pill

as a medical-technological innovation that revolutionized women’s
lives overnight,50 opened up the possibility of female sexual pleasure,
and liberated them from the tyranny of unfettered childbirth.51 Daniela
Danna’s chapter in Gert Hekma’s A Cultural History of Sexuality in the
Modern Age similarly characterized the role of the churches as defensive
of the ancien régime, and in a brief discussion of HV she drew attention
to Dutch Catholic exceptionalism in a portrait of otherwise concerted
resistance to female emancipation.52 National surveys of the sexual cul-
tures of twentieth-century Europe have tended to pay slightly more
attention to the intersections of newer sexual technologies and cultural
mores with the strictures of Catholic teaching. Well before the ‘reli-
gious turn’ in histories of gender diagnosed by Morgan and de Groot
in 2013,53 editors Edner, Hall, and Hekma included extended discus-
sion of the position of the Catholic church on sexology, birth con-
trol and queer sexuality in their Sexual Cultures in Europe: National
Histories.54 Perhaps the most consistent call for integration and interro-
gation of sexual and religious cultures has come from Dagmar Herzog,
not only within her seminal Sexuality in Europe: A Twentieth-Century
History55 but also in more recent work identifying the need to move
beyond a ‘paradigm of liberalization’ to recognize the ‘many ambiv-
alences and confusions the sexual revolution caused from its incep-
tion’, not only within national contexts but also between and within
churches.56
This myopia is particularly marked within the latest scholarship sur-
rounding 1968, which neglects a religious optic in its exploration of
revolutionary phenomena beyond a Western paradigm57 and is marked
by a preoccupation with issues of memory and legacy.58 Even Frazier
and Cohen’s stimulating Gender and Sexuality in 1968, with its call to
explore the ‘multiple dimensions of sixties struggles [by expanding] the
notion of who and what constituted …political struggles, protagonists
and politics’, seems oblivious to the potential of religious actors and the-
ological protesters as candidates for such an extended remit.59 Studies of
’68 with their genesis in oral histories seem to overcome this oversight in
part, such as Ronald Frazer’s longstanding 1968: A Student Generation
in Revolt,60 complemented and considerably extended by a recent trans-
national, collaborative project based in Oxford which drew from the oral
histories of 500 former activists across fourteen countries. Synthesized in
the edited volume Europe’s 1968: Voices of Revolt,61 which included an
10 A. Harris

entire chapter on ‘faith’,62 its survey of experiments with worker priests

and base communities in France, Spain, Italy and Hungary, alongside
the contributions of Catholic trade unions to iconic ’68 protests such as
the Lip watch factory strike, led these authors to conclude that ‘rejecting
the path of secularism, religious activists found powerful ways to tie pro-
test to belief.’63 They concluded: ‘the sheer scale of this religious rebel-
lion challenges us to rethink “1968” as an inherently secular moment
of transformation.’64 However‚ despite that volume’s discussion of the
Second Vatican Council, shifting understandings of family and cleri-
cal celibacy, and a separate chapter on gender and sexuality,65 HV is not
mentioned once.
What is striking in all these examinations of student militancy and
revolutionary activities in the sixties, even in those that do adopt a study
of the transformation of Catholicism as their focus, is the paucity of
specific analysis of HV and the reticence of authors to integrate the
dissension focussed by the encyclical into wider studies of the agen-
das of ‘liberal’ or ‘progressive’ Catholics. From James Hitchcock’s
near-contemporaneous assessment of The Decline and Fall of Radical
Catholicism, in which there are merely three passing references within
an otherwise lucid exploration of post-conciliar reform agendas,66 to
the cursory treatment in Jay Corrin’s excellent study of a ‘Catholic
New Left’ in Catholic Progressives in England After Vatican II,67 there
remains a telling lacuna within Horn’s The Spirit of Vatican II, despite
his calls for a reappraised ‘spiritual 60s’.68 Common to these narratives
is a celebration of a period of theological and political florescence, fol-
lowed by disillusionment and declension, and an identification of the
‘political’ in strictly structural, materialist and often male terms. This
emphasis clearly overlooks the ways in which the widespread and much
more inclusive protests by ordinary women and men against HV could
complement, complicate and in some instances diversify the strate-
gies and activities of leftist militants, from the protest meetings of the
Katholikentag described (and illustrated) in Ebner’s and Mesner’s
chapter, to the inherent challenge posed to the Fascist regimes of the
Iberian peninsula by any post-conciliar activity. Yet beyond such une-
quivocally political manifestations, this volume contends that these
attempts to reconfigure ‘the personal’ within official Catholic teachings
on love, marriage, family planning and intimate relationships, are inher-
ently ‘political’ if conceptualized through a New Left and later WLM
ideological rendering. These protests therefore challenge a narrow
Another random document with
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that respect, we would like to inform them that all who believe that
the new Amendment has been or can be put in the Constitution by
governments, “seem to have lost sight of the people altogether in
their reasonings on this subject; and to have viewed” our national
and state governments, “not only as mutual rivals and enemies, but
as uncontrolled by any common superior in their efforts to usurp the
authorities of each other. These gentlemen must be here reminded
of their error. They must be told that the ultimate authority, wherever
the derivative may be found, resides in the people alone, and that it
will not depend merely on the comparative ambition or address of
the different governments, whether either, or which of them, will be
able to enlarge its sphere of jurisdiction at the expense of the other.”
(Fed. No. 46.) It contributes not a little to the importance of the
quoted statements that they were written by Madison, who also
wrote the real Fifth Article. They are his warning to the then
“adversaries of the Constitution.” They serve well as our warning to
the present adversaries of our Constitution, who assume and have
acted on the assumption that they can ignore its most important
factors whenever government desires to exercise or to grant a new
power to interfere with our individual freedom, although we have not
granted it but have reserved it to ourselves.
We might continue somewhat indefinitely the story of Senate Joint
Resolution 17 in the House of Representatives on that December
day of its passage therein. We would find, however, what we have
already seen of Webb and his colleagues there to be typical of all
they have said and all that they knew of basic American law. We
cannot leave that House on that day, however, without some
comment upon the final eloquent appeal made by Webb at the close
of his arduous labor to secure the passage of the Resolution.
To those, who have any knowledge in the matter, it is well known
that Christ preached the doctrine of free will and temperance, while
Mohammed laid down the law of prohibition. With great curiosity,
therefore, we have listened for years and still listen to the ceaseless
tirade coming from Christian churches where men style themselves
American “Crusaders” and denounce, in no temperate language, all
Americans who do not align themselves under the “Crescent” flag of
Mohammed and respect his Mohammedan command embodied in
the First Section of the Eighteenth Amendment. Our curiosity is not
lessened by the fact that their denunciation of those, who flatly deny
that the command itself is Christian, is always accompanied with an
equally temperate denunciation of those who dare to question their
Tory concept that governments in America can constitute new
government of men.
We have seen Webb, with a candor only equalled by ignorance,
frankly array himself with those who believe the Tory concept, that
the legislatures of the state citizens are “the only tribunal” in which
the national part of the Constitution of the American citizens can be
changed. To his credit, therefore, we find it a matter of record that,
with equal candor, he frankly arrays himself under the “Crescent” flag
of Mohammed and eloquently appeals to all other devotees “of the
great Mohammed” in support of the Mohammedan and un-Christian
precept embodied in the Eighteenth Amendment. That full justice
may be done his eloquence and his candor, these are his own words
on his immortal December 17, 1917: “During one of the great battles
fought by Mohammed, the flag was shot from the ramparts. A daring
and devoted soldier immediately seized it with his right hand and
held it back on the rampart. Immediately his right arm was shot off,
but, never faltering, he seized the flag with his left hand and that, too,
was instantly shot away whereupon with his bleeding stubs he held
the emblem in its place until victory came.
“With a zeal and a determination akin to that which animated this
devotee of the great Mahomet, let us wage a ceaseless battle and
never sheathe our swords until our constitutional amendment is
firmly adopted and the white banner of real effective prohibition
proudly floats over every courthouse and city hall throughout this, the
greatest nation upon earth.” (Congressional Record, Vol. 56, p. 469.)
 CHAPTER XVIII
THE TORY IN THE SENATE

When our present Constitution was before the people of America,

waiting their approval or rejection, Madison and Hamilton published
their series of essays, now known as The Federalist. It is not our
intent to dwell upon the knowledge of American basic law shown by
these two men. Elsewhere our Supreme Court has paid its deserved
tribute to The Federalist as an authority of the greatest weight in the
meaning of our Constitution. At this moment, we desire to mention
one remarkable quality which makes those essays unique among
arguments written in the heat of a great political controversy. They
were written to urge that human beings create a great nation and
grant some enumerated powers to interfere with their own freedom.
They were written when other great leaders were opposing that
project with the utmost ability and eloquence. These opponents, as
is the custom with men in any heated controversy, denounced the
project and its advocates. The abuse of both project and advocates
has probably never been exceeded in America. Yet it is one
remarkable quality of the arguments of Madison and Hamilton, in
The Federalist, that they themselves never leave the realm of reason
and fact and law, or descend to irrelevant abuse of those who differ
in opinion with them.
We, who have lived through the last five years in America, can
truthfully say that the advocates of the new constitution of
government, the Eighteenth Amendment, have made their essays
and speeches and arguments notable for the same quality, by its
utter absence.
Because fact would interfere with the making of their new
Constitution, they have changed fact. Because law meant that
government could not constitute their government of the people, they
have stated law which has never been law in America since 1776.
Because reason would prevent the achievement of their purpose,
they have appealed to irrelevant abuse of those who dared to differ
in opinion with them.
In view of these known facts, we average Americans shall not be
surprised when we read the record of the Senate on its own proposal
that government should exercise a power not delegated to interfere
with individual freedom. Fresh from the reading of the record in the
House, we shall not be surprised to find that the Senate also ignored
the most important factors in the Tenth Amendment and the Fifth
Article, “the people” in the one, and the mention of the people’s
exclusive ability to make national Articles in the other.
When his proposing Resolution came before the Senate on July
30, 1917, Senator Sheppard quickly made clear his mental attitude
on the relation of government to human beings. Whenever a sincere
Tory has voiced himself on that matter, it has always been inevitable
that he betray the thought that human beings are the assets of the
State and not its constituent members. As Madison said, “We have
all known the impious doctrine of the Old World, that people were
made for kings and not kings for the people.” In the country or in the
mind where that doctrine prevails, it is held to be the right and the
privilege of government to see that the people, like the other assets
of the State, are kept in good condition so that all property of the
State may have its greatest economic value in the market of the
world.
And so we find Sheppard, through all his opening support of the
new constitution of government based on the Tory doctrine, making
clear the necessity that our government keep that asset, which is the
citizens of America, in good physical condition like any other
machine that may be in America.
“In an age of machinery and of business transactions on a scale
more enormous and complicated than ever before, the clear eye, the
quick brain and the steady nerve are imperatively demanded.
Society today is more dependent upon the man at the machine than
at any previous period. We are coming to understand that the engine
of the body must have the same care as the engine of the aeroplane,
the battleship, the railway train, the steamship or the automobile; that
the trade in alcohol is a form of sabotage which the human machine
cannot endure; that it is no more to be tolerated than would be the
business of making and selling scrap iron to be dropped into the
delicate and complex machinery of modern manufacture,
transportation and commerce.” (Congressional Record, Vol. 55, p.
5550.)
After this admirably accurate appreciation of the relation of our
American government to the asset which is ourselves, Sheppard
then proceeded to teach us (who have just lived through the
education of the American human beings who made the
Constitution) the real facts of that making, as he knows them.
He is advocating that our only American government should ask
the legislative governments of the states, which are not the
governments of American citizens, directly to interfere with our
individual freedom and to grant to themselves and to our only
government future power to interfere therewith on a matter not
enumerated in the First Article. Naturally, as real fact would make
manifest the absurdity of such proposal, he states that, when the
Constitution was made, “by votes of the Southern States the power
to amend the federal Constitution was vested in three fourths of the
states.” Undoubtedly he meant us to understand that the Constitution
(through whose real making we have just lived) was made by the
states and that the Southern States granted to the legislatures of
three fourths of the states the omnipotent ability over the human
beings of America, which those human beings themselves had
denied to the English king and his legislature. That he meant us so
to understand we shall learn to a certainty in a moment. Meanwhile,
let us note how inadvertently he states part of the truth, while
omitting all reference to the part thereof which would make his own
proposal the clear absurdity which it was.
We note his reference to that part of the Fifth Article which
mentions the ability of three fourths of the state legislatures to
amend the federal Constitution. Because we have lived through the
days of the real American leaders, we recall that our Constitution is
both federal and national and that state legislatures always had
ability to make federal Articles and never had ability to make national
ones. We also remember that those state legislatures were
permitted, by the people who made our Constitution, to retain some
of the ability they had and were given no new ability. We also
remember that the Fifth Article mentions their existing ability to make
federal Articles and prescribes, as the command of the people of
America, that a “Yes” from three fourths of them shall validly make a
change in the federal part of our dual Constitution. For which reason,
with somewhat of amusement, we note Sheppard’s inadvertent
accuracy of statement, when he says that three fourths of the state
legislatures may amend the federal Constitution. With our
knowledge, we do not care what he meant or intended that others
should understand. We know that nothing has been more definitely
settled in America, since 1776, than that legislative governments
never can make a national Article or change our national
Constitution.
We now come to that part of Sheppard’s oration in which he
makes certain his remarkable “knowledge” that our Constitution was
made by the states—which are political entities—and not by the
people of America. With a complacency requisite in one who
advocates that unique constitution of a new kind of government in
America, government of the people by government without authority
from the people, we find him quoting from Calhoun of 1833 the
doctrine that the states made the Constitution. “In this compact they
have stipulated, among other things, that it may be amended by
three fourths of the states; that is, they have conceded to each other
by compact the right to add new powers or to subtract old, by the
consent of that proportion of the states, without requiring, as would
otherwise have been the case, the consent of all.” (Congressional
Record, Vol. 55, p. 5553.)
The history of America from May 29, 1787, to July 30, 1917, was
clearly a sealed book to Sheppard of Texas on that later day.
On May 30, 1787, at Philadelphia, Randolph of Virginia offered the
three Resolutions, which proposed that the people of America create
a nation and absorb into their national system the federal union
which had been made by the states. The first resolution was to
express the sentiment of the convention “that the union of states
merely federal will not accomplish the objects”; the second was to
express the sentiment that “no treaty or treaties among the whole or
part of the states, as individual sovereignties, would be sufficient”;
and the third was to express the sentiment “that a national
government ought to be established, consisting of the supreme
legislative, executive, and judiciary.”
The work of that Philadelphia Convention was carried to a
successful conclusion on the basis of those sentiments. When their
proposed Constitution had been worded, it was sent to and made by
the one people of America, not by the states.
The Constitution of the United States was ordained and
established, not by the states in their sovereign capacities,
but emphatically, as the Preamble of the Constitution
declares, by the “people of the United States.”
So declared Justice Story, from the Bench of the Supreme Court,
as far back as the decision of Martin v. Hunter’s Lessee, 1 Wheat.
324. As Story was an associate of Marshall on that Supreme Court,
and as he is recognized as one of the greatest exponents of our
Constitution, we average Americans prefer his knowledge to that of
Sheppard even when the latter does quote from Calhoun.
Furthermore, in an unbroken line of decisions, extending over the
entire period of more than a century of whose history Sheppard
knows naught, the Supreme Court has insistently proclaimed the
same fact, namely, that the people of America—not the states—
made our Constitution.
“It is no longer open to question that by the Constitution a
nation was brought into being, and that that instrument was
not merely operative to establish a closer union or league of
States.” (Justice Brewer, in the Supreme Court, Kansas v.
Colorado, 206 U. S. 46.)
Indeed, many men before Sheppard have attempted to deny that
fact. History, however, records no successful denial. As Sheppard
states, the words of Calhoun were from his reply to Webster in 1833.
In the history of a century, all a sealed book to Sheppard, Haine also
asserted, against Webster, the belief of Calhoun and Sheppard as to
what were the facts of the making of our Constitution. We average
Americans, in an earlier chapter herein, have read Webster’s
statement as to what were the facts of that making. Having lived,
ourselves, through the days when the Americans did make their own
Constitution, we agree wholly with Webster and the Supreme Court
and know that the states had no part whatever in its actual making.
Over fifty years ago, however, it became absolutely immaterial,
except for academic purposes, what might be the personal beliefs of
ourselves or Calhoun or Haine or Sheppard or Webster. Shortly after
the middle of the last century, the Southern States, just as unwilling
as Sheppard in 1917 to accept the unalterable decision of the
Supreme Court that our Constitution is not a compact between
states, appealed to the only tribunal to which there is any appeal
from that Court, the tribunal of civil war. Even Sheppard must know
the result of Gettysburg, the surrender forever of any claim that the
Constitution is a compact between the states. Even Sheppard must
some time have heard the echo of Lincoln’s appeal, at Gettysburg,
that government of the people, by them and for them, should not
perish from the earth. Even Sheppard must recognize, whether or
not he wish to do so, how successfully the American people, whose
predecessors made the Constitution, answered that appeal of
Lincoln and intend to keep our government a government of the
people, by them and for them, instead of a Sheppard government of
the people, by governments without authority from the people.
We average Americans, however, do not question the wisdom of
Sheppard in quoting the repudiated claim of Calhoun, so long as
Sheppard and his colleagues intended to continue their effort to
impose upon us the new constitution of a new kind of American
government, which is their Eighteenth Amendment. If he and they
were to find anywhere citations in support of the ability of
governments in America to exercise and to grant undelegated power
to interfere with human freedom, to what source could he or they go
for such citations? Their proposition depended wholly for its validity
upon the Tory concept of the relation of government to its assets and
subjects, the people. And, in the five volumes of the records of the
conventions of the Americans, in the two volumes of The Federalist,
and in over two hundred volumes of American decisions in the
Supreme Court, he and they knew that no single citation of authority
could be found to support the idea that we Americans are “subjects”
and not citizens. In the face of such a situation, he and they had but
a choice between the repudiated claims of Calhoun and Haine or the
concepts of Lord North and his associates in the British Parliament
of 1775. We average Americans know what choice we would have
made, under such circumstances. For which reason we are not
surprised to find Sheppard, after his remarkable quotation from
Calhoun, continuing on to say that the states “by reserving to
themselves the unqualified and exclusive right of amendment kept
intact their sovereign capacity in so far as the organic law of the
nation was concerned.” (Congressional Record, Vol. 55, p. 5553.)
With the Supreme Court, we have always known and we still
know, despite Sheppard, that the people of America did all the
reserving that was done and which the Tenth Amendment merely
declared had been done. We note, with intent to remember, how
clearly Sheppard demonstrated his total ignorance of the most
important factor in that Tenth Amendment, “the people,” and of the
most important factor in the Fifth Article, the mention of the reserved
exclusive ability of the people themselves, assembled in their
“conventions,” to amend or change or add any national Article in
their Constitution.
As we go on with his oration of that July day, we find him insisting,
as we found the House insisting on a later day, that the states and
their legislative governments are all the protection to our individual
liberties which the American people were able to attain by the efforts
of those remarkable years from 1775 to 1790. Curiously enough, that
insistence is mentioned in the same breath in which he suggests that
we, the citizens of America, have some rights, evidently in the nature
of privileges which a government confers on its subjects. This is
what he has to say: “In refusing the people the right to appeal to the
only tribunal having power of amending, the tribunal of the states, for
the redress of what they consider one of the most terrible grievances
in the republic, Congress would deny to them one of the most sacred
of all rights, the right of petition.”
 Why should the supreme legislature not deny that right of petition
to us, if the inferior state legislatures, who are not governments of
the citizens of America, claim power to deny us any right they
please, as they do by their supposed Eighteenth Amendment to our
Constitution?
But we waste time on this Sheppard. Let him say his own farewell
to us; the citizens of America, in his closing words of July 30, 1917.
As Webb, in the House, closed with his eloquent appeal to every true
Mohammedan, we naturally find Sheppard closing with his appeal to
whatever Tory sentiment believes that the same most important
factor in the Tenth Amendment and the Fifth Article should be equally
ignored.
“At the close of this debate we will have an opportunity to enable
the states to exercise their highest function—the right to shape, alter,
and develop the federal Constitution. They are the proper tribunal to
decide the fate of this Amendment. They compose the mightiest
array of free commonwealths united in a federated whole the world
has ever seen.... If there is anything in the Amendment subversive of
their liberties and their welfare, they can be trusted to condemn it.
Let not Congress assume to judge for them. Let Congress discharge
its preliminary task of submission and stand aside. Let it put in
motion the referendum provided by the national organic law—the
method of amendment the states themselves established when they
created the Constitution. Let the states perform the duty which
remains the sole instance of their sovereignty over the federal
government itself.” (Congressional Record, Vol. 55, p. 5554.)
If it were still 1833, if there never had been a Gettysburg or an
Appomattox, could Calhoun himself have done better? If there never
had been the Statute of 1776 or an American Revolution to make it
the basic law of America, could any Tory peer in the Westminster
Parliament of 1775 have been more zealous to see that the states
themselves—which are mere political entities—should determine
whether there was anything in the Eighteenth Amendment
“subversive of their liberties and their welfare?” If there is, “they can
be trusted to condemn it.” Let our “Congress discharge its
preliminary task of submission and stand aside.” What if there is
anything in the Amendment subversive of our liberties and our
welfare? Why should we be trusted with the opportunity to condemn
it, the opportunity which we reserved exclusively to ourselves by the
most important factors in the Tenth Amendment and the Fifth Article?
Why should we remember that Jefferson, also from a Southern
State, penned the Statute of 1776 in which the American people
commanded that no government acquire power over people except
from people and not from governments? Why should we remember
that Pendleton, also from the South, while actually engaged with all
the rest of the American people in making the First Article, referred
to it and asked, “Who but the people can delegate powers? What
have the state governments to do with it?” Why should we remember
that Wilson, in the previous December, that of 1787, said of our
Constitution, “Upon what principle is it contended that the sovereign
powers reside in the state governments? The proposed system sets
out with a declaration that its existence depends upon the supreme
authority of the people alone? How comes it, sir, that these state
governments dictate to their superiors—to the majesty of the
people?” Why should we remember that Webster, answering Hayne
and Calhoun, said, also speaking of our Constitution, “While the
people choose to maintain it as it is—while they are satisfied with it,
and refuse to change it—who has given, or who can give, to the
state legislatures a right to alter it, either by interference,
construction, or otherwise?... Sir, the people have not trusted their
safety, in regard to the general constitution, to these hands. They
have required other security and taken other bonds.” (4 Ell. Deb.
508.)
It is true that these earlier Americans have clearly in mind the most
important factor in both the Tenth Amendment and the Fifth Article.
But it must not be forgotten that Pendleton and Wilson and the
Americans of that day, in making our Constitution, in constituting a
new government and giving to it some powers over the freedom of
human beings, were acting entirely outside any written law except
the Statute of ’76. Is not their example a sound precedent for those
who are now constituting a new government of Americans and giving
it power over their freedom, for those who made the Eighteenth
Amendment and those who upheld its validity? What if the makers of
the new government are themselves government? If governments
choose to act outside of all written law and to ignore that part thereof
which is the important factor of the Tenth Amendment and the Fifth
Article, are these governments not emulating the example of the
American people in 1787? True, these American people did act in
strict conformity to the Statute of 1776, and this modern constitution
of new government by government is not in conformity with that
Statute. But was not that Statute itself the revolt of human beings
against government? If human beings, by successful revolt against
government, could change themselves from subjects to citizens, why
cannot government, by successful revolt against human beings,
change them from citizens to subjects?
If, however, Sheppard and Webb and those of their Tory faith insist
that the new constitution of government is in our Constitution, and
put there validly, under claimed grant from us to state governments
of omnipotence over American citizens, we, on our part, know that
their claim is without the slightest support. Moreover, our knowledge
in that respect is knowledge of indisputable legal fact. That the fact
would be equally indisputable, even if our Constitution was a
compact between states, as Calhoun did claim, and as Sheppard
does claim, we can clearly demonstrate even to Sheppard himself.
Our education with the earlier Americans, who changed their status
from that of subject to citizen, has taught us all we need for that
demonstration.
Let us assume, what Sheppard asserts, that the states made the
Constitution, that it is a compact between states. Sheppard is a
Texan. If our Constitution is a compact between states, the State of
Texas is one of the parties to that compact. We ask Sheppard
whether he and the other Texans are the State of Texas or whether
the legislative government in Texas is the State of Texas? If he
answers that the Texas legislature is the State of Texas, we proceed
no further. That answer will be his frank confession that the Texan is
a subject of the Texas government and not a citizen or member of
the Texas State.
 On the other hand, if he answers that the human beings of Texas
are the State of Texas, we do proceed further. We proceed along the
most definitely settled legal principle in America. If the human beings
in Texas are its citizens and constitute its State, the constitution of
Texas is their creation and the legislature of Texas is the creature of
that constitution. From the Texans, through the creation which is their
constitution, that legislature derives its every power over the human
beings in Texas and cannot have any such power except by grant
from those human beings themselves. That is the law of Texas,
settled by hundreds of decisions in Texas and America. Now, if our
American Constitution is a compact between the State of Texas—the
human beings in Texas—and the other states—the human beings in
the other states—how comes it that the mere creature of the Texans,
without power over them except from them, can, by combination with
other servant legislatures outside Texas, give to itself and to other
governments outside Texas a new power to interfere with the
freedom of the human beings in Texas?
We are rather afraid that Sheppard and those of his faith, even
assuming that our Constitution is a compact between states, have
entirely overlooked the legal fact that a government is not the State
in America. We are rather afraid that they have reverted to what
Madison called “the impious doctrine of the Old World,” namely, that
the government is the State and the human beings are its asset and
its property. We are rather afraid that they agreed with the concept of
Louis of France, expressed in his famous “I am the State.”
On no other basis can we explain their complete ignorance of the
one important factor in the Tenth Amendment and the Fifth Article,
“the people” of America, who, assembled in their “conventions,” as
mentioned in the Fifth Article, are the citizens of America and
compose the State or Nation of America.
We average Americans, in the light of our education, reading the
record of that July 30 in our Senate, would have thought, were it not
for one fact, that every senator was using the expurgated edition of
the Constitution, which Webb later used in the House, and which
omits entirely from the Fifth Article the words, “by conventions in
three fourths of” the states. Were it not for that one fact our thought
would have been justified. We know that the proposition of
Sheppard, embodied in his Senate Resolution No. 17, was that the
proposed new Article should be referred to the tribunal of the state
legislative governments. We know, and we have quoted his own
statement, which is the basis of that knowledge, that he held that
legislative tribunal to be “the only tribunal having power of amending”
our Constitution. We know that he held this legislative tribunal to be
“the proper tribunal to decide the fate of this Amendment.” We know
his confidence that this legislative and government tribunal has “the
right to shape, alter, and develop” our Constitution, ordained and
established by the citizens of America. His conviction, in this respect,
is stamped indelibly on our mind, because it came in such sharp
conflict with our knowledge that all Americans of an earlier day held
that every national Article, like the First Article and the supposed
Eighteenth Amendment, must be referred to that other tribunal, the
only tribunal competent to make such Articles where men are
citizens and not subjects, the tribunal of the American citizens
themselves, the tribunal mentioned in the Fifth Article in the words
“by conventions in three fourths of” the states in America.
We know, therefore, inasmuch as neither Sheppard nor any
senator but one apparently knew of the existence of that other and
supreme tribunal or of the presence of those words in the Fifth
Article, that all senators save that one must have been using an
expurgated edition of the Fifth Article.
On that July 30 we find Senator Ashurst making plain that he has
our edition of our Constitution. He said, “When our federal
Constitution was written in 1787, two methods of amending were
provided; and, unless I am mistaken, it was the first written
constitution in history which provides for two methods of
amendment.” This brief and simple mention of that significant fact, in
relation to the Fifth Article, seems to have been the only cognizance
of the fact itself, in the Senate of that day or in the entire subsequent
history of the Eighteenth Amendment, even in the great litigations
about it in which were arrayed against one another the most
renowned “constitutional” lawyers in America. So far as would
appear from the Senate record, no knowledge of the amazingly
important effect of that Fifth Article mention of two distinct powers
(one limited and then existing in government and the other unlimited
and then and now existing in the American people) to make future
Articles was acquired in the Senate or afterward, from the fact itself
or from Ashurst’s allusion to the fact.
Back at Philadelphia in 1787, Gerry, always Tory in his mental
attitude to government and human being, realized fully the amazing
importance of this Fifth Article mention of the two then existing
powers to make Articles, the limited power of legislative
governments to make federal Articles (which had made all the
federal Articles of 1781) and the unlimited and exclusive power of
the people themselves to make national Articles, which had been
exercised to make the national Articles in each existing state
constitution, and which the Philadelphia Convention had already
ascertained and held was the only power competent to make such
Articles as their own proposed First Article and the Eighteenth
Amendment. While the Philadelphia Convention had been
discussing and deciding that their proposed Constitution, because of
its First Article, the real constitution of government, must be referred
to the people, Gerry had always opposed that decision. He had
always fought to have that First Article sent to government, to have
its grants of power over the freedom of men made by government to
government. When, therefore, the closing business day of that
Convention was reached on September 15, 1787, he made his final
and consistent Tory effort that citizens should be asked to make a
Fifth Article which would change them back again to the subjects
they had been in 1775. That effort was his motion of September 15
to strike from the Fifth Article, as we know it, the words “or by
conventions in three fourths of” the states. He knew, as we know, by
reason of our education with the Americans who defeated his effort,
that those words are the Fifth Article mention of the then existing
only ability in America which then could or now can make such
Articles as the original First Article or as the supposed Eighteenth
Amendment. He knew, as we average Americans now know, that,
only if such mention were stricken from that Fifth Article, could any
future possible claim be made that legislative governments have
ability to exercise or to grant undelegated power to interfere with
individual freedom. With the important object in mind, that he secure
some foundation for such claim in the future, he made his motion to
strike that mention of our exclusive power from that Fifth Article. As
we average Americans know, his effort to have a convention even
propose such a Fifth Article to “a people better acquainted with the
science of government than any other people in the world” was
beaten by the decisive vote of 10 to 1.
The proposal of the Eighteenth Amendment by government to
government was the attempt of our servant American government to
reverse the result of that vote of September 15, 1787. The action of
the state legislative governments in America upon that proposed
Eighteenth Amendment was an action depending entirely for its
validity upon a recount of that vote and the assumption that the
convention did strike out that mention of our exclusive power to
make national Articles and that the Fifth Article went to the American
people and was made by them without that mention in it. For which
very obvious reasons, we average Americans do not understand
how the fact, to which Ashurst made brief allusion on July 30, 1917,
was not the basis of every attack made in the Supreme Court by
many of the most renowned “constitutional” lawyers in America,
when they did assail the validity of that Eighteenth Amendment.
It is difficult to pick out the one most remarkable thing in the
complete story of the last five years. Yet we are inclined to believe
that, from a certain point of view, the one most remarkable thing is
the absolute failure of even one of those renowned lawyers to
appreciate or know or mention the fact and its decisive effect upon
the alleged validity of the Amendment they challenged, the fact that
the Fifth Article does name two future makers of Articles, the
governments which could and did make the federal Articles of 1781,
but which neither could nor did make the First Article of 1787 or the
Eighteenth Amendment of 1917, and the citizens of America, who
could and did make the First Article of 1787 and who alone can
make but have not made the Eighteenth Amendment.
Even Ashurst seems to have known that it was remarkable, unique
in history, for the Fifth Article to name two different makers of future
Articles. It is amazing that the imperative reason for this naming of
two makers, distinct and different in their ability to make, never
suggested itself to any of the renowned lawyers of 1920, even
though they knew the dual nature, national and federal, of our
Constitution. It is amazing when we realize that the Supreme Court,
in 1819, had stated, as an obvious thing, that, when the First Article
(granting power to interfere with the freedom of men) was proposed,
the legal “necessity of referring it to the people, and of deriving its
powers directly from them, was felt and acknowledged by all.” It is
amazing when the same Supreme Court in 1907 had authoritatively
repeated that statement: “The powers the people have given to the
general government are named in the Constitution, and all not there
named, either expressly or by implication, are reserved to the people
and can be exercised only by them or upon further grant from them.”
However, we average Americans, still pursuing the history of
America to learn when we again became “subjects,” will later herein
consider the litigation about the Eighteenth Amendment. So far as
the Senate is concerned, we leave it on December 18, 1917, the day
on which it finally proposed that legislative governments make the
Eighteenth Amendment, whose Second Section was exactly of the
same nature as the First Article, namely, an Article of the kind which
the Philadelphia Convention of 1787 had known never could be
made by legislative governments in America. In that Senate, as in
the House, the public record discloses no American who did not
ignore the most important factor in the Tenth Amendment and the
Fifth Article, no American who knew the legal necessity of deriving,
directly from the people themselves, every power to interfere with the
individual freedom of the people.
So far as history tells the tale, in the legislatures of the states, that
legal necessity was “known and acknowledged” by none. There were
many therein, as there were many in the later court litigations, who
opposed the making on the ground of its unwisdom. There were also
many, again as in the later litigations, who contended that there
should be no interference with the freedom of American citizens, as
such, except on the matters enumerated in the First Article. But,
neither in our own American legislature nor in these state
legislatures, as in the later litigations, was there one who knew the
only legal and maintainable ground for that belief, the legal fact, as
the Philadelphia Convention found it, that only the American people
could validly grant government power to interfere with their individual
freedom, and the legal fact that the American people, constituting
their government, kept the legal situation, in that respect, exactly as
the Philadelphia Convention found it, by the most important factors in
the Tenth Amendment and the Fifth Article.
The amazing haste with which the ratifying legislatures exercised,
for the first time in America, this imaginary power to interfere with the
individual freedom of the American citizens is a matter of history. The
manner in which that legislative exercise of imaginary government
power over subjects was secured in many states is something with
which we are all familiar. We desire, however, to emulate the
example set by Madison and Hamilton in The Federalist, so far as
judgment can restrain the honest indignation of citizens, when
government undertakes to make them “subjects.” Therefore we
leave it entirely to those who uphold the validity of the supposed new
Amendment to substitute irrelevant matter, mostly personal abuse
that is harmless in view of its source, for the sound legal arguments
in support of validity, which they can never find until the Statute of
’76 is repealed and our constitutions of government are so changed
that we cease to be citizens and become the subjects our ancestors
were in 1775.
For those who would like to look upon all American governments
as model exemplars of American respect for American law and
American constitutions, the date of the proposal in December, 1917,
and the quickness of ratification and the manner in which ratification
was largely secured, are all matters most unpleasant to contemplate.
Even now the most sincere advocate of the new Amendment never
speaks of it without unwittingly showing his chagrin at the general
knowledge that it was proposed and passed by governments when
millions of the citizens of those governments were fighting and were
armed to fight for human liberty, and that even governments would
never have dared to pass it except at that particular time.
These facts, however, reflect only on the virtue of the Amendment.
They have no bearing upon its validity. We average Americans are
interested now only in that claimed validity. We know that, if it is
valid, we have become subjects, that we are no longer citizens. We
are seeking to find out when and how that change was made in our
relation to all governments in America. Beginning on July 4, 1776,
we have come down to December 18, 1917. We have found
ourselves, on that day, still citizens. We know that our servant
legislature at Washington made a proposal on that day, which was
legally absurd, unless we had already become subjects. We have
listened carefully to what they had to say, in support of that proposal,
and have ascertained that they neither knew nor understood the
most important factor in our Tenth Amendment and Fifth Article, by
which our ancestors kept their own and our status as citizens. We
know that the state legislatures could not change that status.
Therefore we now simply note the fact that, in 1918, some of them
ratified the proposal on the basis that all of us were their subjects.
We know that our own government at Washington has acted,
whenever it felt disposed to enforce the supposed new command
against us and not to disobey it openly itself, as if we were the
subjects of those ratifying legislatures.
We know also that in 1920, after more than a year of exhaustive
study of our history and our Constitution and our laws by hundreds of
our most eminent lawyers, all working for one object, the legal
demonstration of the invalidity of the new Amendment, a chosen
number of the most renowned “constitutional” lawyers in America
appeared in the Supreme Court and orally argued against validity
and filed the briefs against validity which were the result of this
concentrated effort. We know also that, in that court, on behalf of our
own government and on behalf of those other governments which
that government has proclaimed to be the supreme dictator in
America, there also appeared another chosen array of the most
renowned “constitutional” lawyers, in the forefront being a former
justice of that court, now the American Secretary of State. This latter
array appeared to demonstrate how and when, since 1790, our own
status was changed from citizen to subject and the collective
legislatures of some of the states were substituted for ourselves as
possessors of the supreme constitutional will in America.
 We average Americans, therefore, to complete our education, now
turn to the arguments of these lawyers and to their briefs, with
somewhat of chagrin at our own unaided ability to ascertain the
“when” and “how” we became subjects and our Constitution, in its
national Articles and aspect, became the creature of legislative
governments, although the American people originally created it to
be the master of all governments.