Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk.
“ATHENIAN: Tell me, Strangers, is a God or some man supposed to be the author of your laws?”
“ATHENIAN: And do you, Cleinias, believe, as Homer tells, that every ninth year Minos went to converse with his Olympian sire, and was inspired by him to make laws for your cities?”
– Plato, Laws 624a-b
Joel Alicea has striven mightily to reconcile a form of positivist originalism with natural law theory. He claims to have given originalism a “moral authority” derived from the natural law. Yet his arguments reduce to either a noble lie in the vein of Plato’s Republic or an act of faith in liberalism’s founding mythology. Alicea’s recent review of Hadley Arkes’s Mere Natural Law: Originalism and the Anchoring Truths of the Constitution demonstrates this point. There, Alicea makes a startling argument for the moral authority of positivist originalism. He writes:
Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.[1]
Claiming to follow the Thomistic definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated,”[2] he posits that someone must have the “care” of, that is, authority for the direction of, the political community that is the United States. So far so good. But then he goes on to make the remarkable assertion that the “the people,” considered apart from any authority, have this authority under the natural law. Because the people have this authority, their choices in establishing the Constitution are morally binding until revolution or regime change via the mechanisms the people set forth in the Constitution. The same is true, he claims, of the people’s understanding of the Constitution. This argument is fundamentally flawed.
This flaw stems from a failure to understand the true nature of political authority and the political community. Recall that for the natural lawyer, political authority is needed to direct a community to the common good. Although the common good is a definite end (the order of justice and peace) and not a placeholder notion that the theorist can fill in as he pleases, there are multiple means for a given society to achieve it. For example, what side of the road should people drive on, the left or the right? Neither option is intrinsically superior and no amount of argumentation will ever be able to win the day. Therefore, an authority is needed to decide upon the particular means to pursue the good. Authority thus solves coordination problems that cannot be decided via unanimity.[3] A community that lacks a definite authority of this kind would fail to be a political community, or even a pre-political community such as a village or household, as it would be incapable of solving even these elementary problems. It would be akin to a corpse, which in the absence of a soul informing it, is only equivocally a “body.”[4]
Further, the transmission of authority from the community to a particular form of political authority is itself a coordination problem. Because there are multiple just or good regimes (monarchy, aristocracy, polity, and combinations thereof), there is no likelihood of the people reaching unanimity about the type of political authority that should govern them. Some method of determination other than unanimity is therefore required—for example, casting lots, voting by simple majority, two-thirds majority, acclamation of a leader, voting via representatives, etc. And the determination of the appropriate means of determination poses an additional coordination problem that only an authority can solve. And so on, ad infinitum.
Alicea appears not to accept this natural-law account of political authority. Instead, he appears to believe that “the community” and the authority that has care for the community are ultimately the same thing. The absurdity of his argument is plain when stated directly: there must be an authority to direct the people of the United States to the common good, and the people themselves are that authority. How will the people, this as-yet-unorganized collective, exercise that authority? The people will tell us. How will they tell us? . . . . This is not a picture of a political community, or of any community. If “the people” were capable of directing the community on their own initiative there would be no need for an authority to direct it towards the common good in the first place. Because there is a need for such an authority, the people as such cannot have the care of the community (i.e., of themselves understood as belonging to a greater whole).
Here Alicea would object that unanimity is not required for the people to act to transmit their authority to establish a government.[5] It isn’t required because, agreeing in part with the above account, the common good requires there to be the resolution of coordination problems that cannot be reached via unanimity.[6] Thus, “the people’s” consent via the ratification conventions transmitted their sovereignty to the Constitution.[7] The problem with Alicea’s theory is the same that plagues all transmission theories of authority: it assumes what it sets out to prove. To solve the coordination problem of setting up a political authority, there must be a prior authority to solve this coordination problem. But the transmission theory is supposed to provide an explanation of that very authority. The community as such cannot be the holder of original authority which it somehow–without coordination from an authority–then transmits to a political leader or, in Alicea’s telling, to the Constitution.
How, then, does political authority come to be? Chance, virtue, force, and custom are the real answers. Whoever in fact provides for the common good of the community in question possesses the authority to do so.[8] Alicea would object that Aquinas holds that “the making of a law belongs either to the whole people or to a public personage who has care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.”[9] Aquinas in this article is addressing whether any particular person is fit to make laws, and his point is that it cannot belong to any private person because the end is not any particular person’s exclusively but the end of the whole community. Thus, only the community or the community’s rulers can make binding laws.[10] The community as a whole, however, is not in fact capable of making laws or even establishing an authority for all the reasons stated above. As Aquinas succinctly puts it:
Now a social life cannot exist among a number of people unless under the presidency of one to look after the common good; for many, as such, seek many things, whereas one attends only to one. Wherefore the Philosopher says, in the beginning of the Politics, that wherever many things are directed to one, we shall always find one at the head directing them.[11]
This objection also conflates two opposed understandings of the body politic, one classical and one modern. For the classical natural lawyer, the reality of the political community or the body politic is a “complex and spiritual idea.” [12] Following Aristotle’s understanding of the human body as a unified whole of matter and form in which the whole is present in all of the parts, so too in the body politic “each element is both the whole and itself . . . . each member lives within it both its own life and the life of the community.”[13] Because for Aquinas following the Philosopher, “the imposition of order in a city resides entirely with the person who rules over the city; and such an imposition of order is the commonwealth [politia] itself,”[14] the political community absent such imposition is a mere disordered mass of people. Thus, when Aquinas talks about the multitude possessing the power to bind itself, he is not providing an account of popular sovereignty. Instead, he is employing an older understanding of the body politic, within the framework of Aristotelian natural philosophy and political theory.[15] His affirmation that the entire political community possesses the authority to promulgate laws must be understood in light of his understanding that the community is the ruler’s imposition of order. There is no community without such an imposition. In other words, the political authority’s imposition of order is an efficient cause of the community’s coming to be.
But Alicea abstracts and isolates the community from its rulers, and the order imposed by them, leaving us with a mass of individuals with no direction–that is a community only equivocally. This understanding of the “people” unwittingly adopts the Enlightenment theories of Locke, Hobbes, and Rousseau.[16] For these Enlightenment thinkers the “people” are a collection of disincorporated individuals in the mythical state of nature. There is no “order of incorporation” or body politic in modern political theory and practice. As noted French philosopher Pierre Manent observes, “earlier society organized itself to bind its members and was intended to represent and consolidate the social bond, our democratic society organizes itself to unbind its members and to guarantee their independence and their rights. In one sense our society wants to be a dis-society.”[17]
After this discussion of the intricacies of political theory, the reader may be wondering what all this has to do with originalism. After all, Aquinas and other scholastics Alicea cites (even those who did hold to a transmission theory of authority like Bellarmine) never embraced originalism.[18] What Alicea is trying to concoct from the baroque scholastics is a way to ground positivism in natural law via popular sovereignty. He argues that because the people are sovereign we have a duty to preserve their sovereignty by “understand[ing] their commands—as embodied in the Constitution—as the people themselves understood those commands.”[19] Here with a sleight of hand Alicea has replaced natural law with positivism via popular sovereignty. He implicitly rejects Aquinas’s definition of law as “an ordinance of reason for the common good,”[20] because the commands of the Constitution and laws enacted under it are not to be measured and ruled by right reason, the natural law, but by their conformity to the will of the people in 1789. Thus, laws enacted in accordance with the Constitution as understood by the “people” are valid and bind judges even if they violate the natural law.
Of course, Aquinas and the natural law tradition hold the opposite view. As Augustine states: lex esse non videtur, quae iusta non fuerit (an unjust law seems not to be a law at all).[21] As Aquinas puts it in the treatise on law, unjust laws “do not bind in conscience[.]”[22] Striking at the heart of Alicea’s position, Aquinas also holds that if the written law is unjust, judgment should not be rendered according to it. He explains: “[j]ust as the written law does not give force to the natural right, so neither can it diminish or annul its force, because neither can man’s will change nature. Hence if the written law contains anything contrary to the natural right, it is unjust and has no binding force.”[23] Concerningly for Alicea, who is a Catholic, this positivist construction of law and jurisprudence has also been condemned by the Catholic Church. Bl. Pope Pius IX condemned the proposition that “[m]oral laws do not stand in need of the divine sanction, and it is not at all necessary that human laws should be made conformable to the laws of nature and receive their power of binding from God.”[24] Likewise, Leo XIII, teaches that “the eternal law of God is the sole standard and rule of human liberty, not only in each individual man, but also in the community and civil society which men constitute when united.”[25] Because natural law, the order of right reason, is the standard by which law is interpreted and judged, a law “out of conformity with the principles of right reason, and consequently hurtful to the commonwealth . . . can have no binding force of law.”[26] Leo XIII and Pope St. Pius X also condemned popular sovereignty precisely because it anchors political authority in the will of the people, instead of God.[27]
Therefore, to say that the regime derives its authority from the prior authoritative act of “the people” is at best a “noble” lie. Here, far from noble, the lie is the dogmatic lie common to all liberal regimes: that a form of government and society evidently designed to fulfill an oligarchy’s “desire for power after power”[28] is, somehow, the “will of the people,” such that the decisions of that oligarchy are sanctified with the veneer of a mythical popular consent. In any event, whether noble, mythical, or otherwise, lies are not the basis of political authority. A political authority’s only claim to rule is precisely that it serves the common good, which the natural lawyer holds to be an objective, true reality. This reality is not something that can be set aside on the basis of liberalism’s self-mythology.
Alicea’s claim that originalism is “required by natural law” is baseless. “The people” cannot exercise the political authority his theory requires. Of course, none of this is to say that the Constitution’s text makes no difference, nor that history and tradition have no role in constitutional interpretation. But it is to say that Alicea’s claim for the moral authority of originalism is built on a pile of sand.
[1] J. Joel Alicea, Anchoring Originalism, National Review (June 22, 2023), https://www.nationalreview.com/magazine/2023/07/10/anchoring-originalism/.
[2] ST I-II, Q. 90, a 4 resp.
[3] See, e.g., John Finnis, Natural Law & Natural Rights 231-254 (2011) (discussing how authority is needed to solve coordination problems and critiquing consent theories of authority).
[4] See Aquinas, Commentary on the Politics Bk. 1 Lectio 1 § 35 (“But individual men are related to the whole city as are the parts of man to man. For, just as a hand or a foot cannot exist without a man, so too one man cannot live self-sufficiently by himself when separated from the city.”); cf. Aristotle, De Anima 413a. (“So just as pupil [matter] and sight [form] are the eye, so, in our case, soul [form] and body [matter] are the animal. It is quite clear then that the soul is not separable from the body, or that some parts of it are not, if it is its nature to have parts.”); Aquinas, Commentary on the Metaphysics Bk. 7 Lectio 10 § 1488 (“In fact they [the parts of the body] are prior in the way in which the simple is prior to the complex, inasmuch as the composite animal is constituted of them. However, they are not prior in the sense in which prior means something that can exist without something else; for the parts of the body cannot exist apart from the animal. Thus a finger is not a finger under all conditions, because one that is severed or dead is called such only equivocally, for example, the finger of a statue or that in a painting.”).
[5] Joel Alicea, The Moral Authority of Original Meaning 98 Notre Dame L. Rev. at 39-41 (2022).
[6] Id. at 41.
[7] Id.
[8] The question for the classical tradition is who in fact has authority and whether that authority is being used to serve the common good or the ruler’s private advantage, not whether that authority was originally gained justly or unjustly. See Aristotle, Politics 1279a20 (“[I]n cases when the one or the few or the many govern with an eye to the common interest, these constitutions must necessarily be right ones, while those administered with an eye to the private interest of either the one or the few or the multitude are deviations.”); c.f. Aquinas, Commentary on Romans Ch. 13 Lectio 1 § 1034 (“Furthermore, even wicked rulers are God’s ministers for inflicting punishments according to God’s plan; although this is not their intention[.]”)
[9] ST I-II, Q. 90, a. 3.
[10] Absent a distinct authority there is only a community equivocally and that mass of individuals possesses no authority. Aquinas’s point is that the political community must have the means to bind its members through the promulgation of laws, hence the existence of this authority is a matter of natural law.
[11] ST I, Q. 96, a.4 resp.; see also Leo XIII Diuturnum illud § 5 (“Indeed, very many men of more recent times, walking in the footsteps of those who in a former age assumed to themselves the name of philosophers,(2) say that all power comes from the people; so that those who exercise it in the State do so not as their own, but as delegated to them by the people, and that, by this rule, it can be revoked by the will of the very people by whom it was delegated. But from these, Catholics dissent, who affirm that the right to rule is from God, as from a natural and necessary principle.”); .
[12] Pierre Manent, A World Beyond Politics? 136 (2006).
[13] Id.
[14] Aquinas, Commentary on the Politics Bk. 3, Lectio V § 385.
[15] Manent, at 136.
[16] One could read some of the baroque scholastics as proto-contractarians, but even they would not have accepted Alicea’s positivism.
[17] Manent, at 137 (emphasis added).
[18] Alicea’s equation of the transmission theory of authority with positivist popular sovereignty is another sleight of hand. The theory was intended to explain the causes of political authority within a broader framework normed by natural law. Alicea turns it on its head to preserve positivist jurisprudence from the authority of the Church and the authority of natural law.
[19] Alicea, Moral Authority, at 44-45.
[20] ST I-II Q. 90 a. 4 resp.
[21] Augustine, De libero arbitrio i. 5.
[22] ST, I-II Q. 96 a. 4 resp.
[23] ST II-II Q. 50 a. 5 ad. 1.
[24] Pius IX, Syllabus errorum § 56.
[25] Leo XIII, Libertas praestantissimum § 10.
[26] Id.
[27] See Leo XIII Diuturnum illud § 23 (“For an unwillingness to attribute the right of ruling to God, as its Author, is not less than a willingness to blot out the greatest splendor of political power and to destroy its force. And they who say that this power depends on the will of the people err in opinion first of all; then they place authority on too weak and unstable a foundation. For the popular passions, incited and goaded on by these opinions, will break out more insolently; and, with great harm to the common weal, descend headlong by an easy and smooth road to revolts and to open sedition.”) (1881); Pius X, Notre charge apostolique (“For the rest, if the people remain the holders of power, what becomes of authority? A shadow, a myth; there is no more law properly so-called, no more obedience.”) (1910); see also Aquinas, Commentary on Romans, Ch. 13 Lectio 1 § 1022 (“The answer is that royal power or the power associated with any other dignity can be considered from three aspects. First, in regard to the power itself, which is from God ‘through whom kings reign’.(Prov 8:15).”); accord id. § 1034 (“This is clear in regard to the proper order of rulers. For they are under the authority of God, the supreme ruler, as his ministers: ‘because as ministers of his kingdom, you did not rule rightly’ (Wis 6:4). But the ruler and the ministers work for the same end: ‘like the magistrate of the people, so are his officials’ (Sir 10:2). Therefore, just as God works for the good of those who do good, so also do rulers, if they perform their office properly.”).
[28] Thomas Hobbes, Leviathan Bk. 1 Ch. 11.
