Henry at Canossa

Frederick Mark Gedicks, Brigham Young University Law School, is publishing True Lies: Canossa as Myth in the San Diego Law Review. Here is the abstract.

This essay is a response to Paul Horwitz, “Freedom of the Church without Romance,” to be published as part of a symposium on “The Freedom of the Church.” The essay endorses Horwitz’s central thesis that advocates of a contemporary “freedom of the Church” have overlooked historical complexities in marking the 11th-century investiture conflict between Henry IV and Pope Gregory VII, often referred to simply as "Canossa" after the small Emilian village where Henry sought absolution from Gregory, as the birth of that freedom.

The essay goes beyond Horwitz to argue that the historical account of “Canossa” presupposed by freedom-of-the-Church advocates is literally false. “Canossa,” instead, is a myth. More salient, nonmythical analogies for a “freedom of the Church” exist in U.S. constitutional history: genuine state sovereignty and dual-sovereignty federalism from the 19th century, and state dignity and native American domestic dependency from the contemporary era. These more historically accessible analogies all suggest that any “freedom of the Church” in U.S. constitutional doctrine is greatly diminished from the robust freedom argued for by those who invoke “Canossa” as that freedom’s defining moment.

But even the mythical “Canossa” remains important. Myths are stories that a society tells about itself, stories that preserve and clarify its deepest values and commitments. Like the “myth of Magna Carta” that has exerted so much influence on English and American constitutional law, “Canossa” emphasizes the dangers to liberty from a government that sees no bounds on its jurisdiction and authority. Though historically false, “Canossa” might yet be mythically true.

Download the full text of the essay from SSRN at the link.