I understand altogether the desire of certain originalists to elevate their jurisprudential preferences to the sphere of morality. It is one thing when conservative donors want originalism to be right; it is another thing when God wants originalism to be right. Likewise, the moral dimension has certain charms when deployed against critics of originalism. Today, criticism of originalism must be treated in fundamentally academic ways: through the marshaling of evidence and argument. If originalism can be lacquered to a moral shine, then one may dispense altogether with the laborious work of answering one’s critics. To oppose originalism is simply to be immoral, and sin does not require the same work. For example, no one feels the need to argue against the sin of Onan; condemn, deplore, rebuke—but not argue.
Heretofore the Church has been unwilling to make a dogmatic proclamation in favor of the originalists—the Munificentissimus Deus template no doubt having been mislaid in the shuffle of Predicate Evangelium—leaving them to their own devices. Catholic University of America law professor Joel Alicea is the latest moralist of the originalists who has attempted to supply the missing condemnation, writing a paper that soon will be published in the law review of the second-oldest law school in Indiana. Already the professional originalists have found not merely a moralist but a true champion. Professor Alicea’s essay has been featured prominently by such publications as National Review. This, too, is understandable. Adrian Vermeule has been all too troublesome for the professional originalists (and, one suspects, their donors have had awkward questions about the younger generations). Professor Alicea finds a moral basis for originalism. At last, to the sin of Onan, the originalists may add the sin of Vermeule. At long last, they may condemn, deplore, and rebuke—but not argue.
Unfortunately, Professor Alicea brings Thomas Aquinas into the dispute. His argument turns on an account of popular sovereignty that relies on Aquinas’s Treatise on Law in the Prima Secundae, particularly ST I-II q.90 a.3. Professor Alicea relies on a whole host of modern authors, such as Suárez, Rommen, Maritain, and John Finnis. But we may safely leave them to one side. It is his confident invocation of Aquinas that is plainly intended to translate jurisprudence into morality. I won’t trace all the steps from popular sovereignty to the conclusion that God commands originalism as part of the law written on our very hearts. Conor Casey and Adrian Vermeule have previously responded to some of the broader points in Professor Alicea’s essay.
I, however, want to discuss a baffling lacuna in Professor Alicea’s argument: namely his failure to engage with authors in the century or so before Thomas Aquinas who debated the question of popular sovereignty in the context of the Lex Regia. Professor Alicea also fails to engage with a significant component of this debate—customary law. The theory of customary law and popular sovereignty appears both in the civil tradition and the canonical tradition, represented most notably by Gratian. Aquinas, as will be seen, not only was aware of this debate, but also takes a side in it. (Indeed, Aquinas takes the side of the minority opinion.) If, therefore, Aquinas’s popular sovereignty is the essential component of the argument that results in a moral force to originalism, then we must answer precisely what popular sovereignty meant for Aquinas. If it turns out that Professor Alicea’s account is at odds with St. Thomas’s, then the viability of his moral account of originalism has serious problems.
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The question of popular sovereignty, which Aquinas answers according to Professor Alicea, was far from unknown in the 13th century. In Aquinas’s native Sicily, Frederick II, acting as King of Sicily and not Roman Emperor, promulgated his Constitutiones in 1231. Among the provisions of the Constitutiones is the flowery—not to say impenetrable—chapter De origine iuris, which outlines a theory of jurisprudence that has popular sovereignty at its root. The Roman people, says the great Frederick, transferred their sovereignty to the Caesars by means of the Lex Regia. The Caesars, therefore, are the origin and guardian of law, the father and son of justice, and other things besides.
As I pointed out nearly two years ago at Ius & Iustitium, Alfonso X’s second Partida (written around the middle of the 13th century—probably thirty years after Frederick’s Constitutiones) discusses the Lex Regia in the context of the Roman Emperor. The Roman people, Alfonso tells us, obtained dominion over the whole world through their military virtues, and having done so they created an emperor and conferred upon him the power they had so that he could serve the common good of all (Partida 2.1.2). This granted him not only de jure power to make law, interpret law, and other things besides, but also de facto power fitting to his station (Partida 2.1.2, 2.1.3). All of this is to say that the concept of popular sovereignty was common enough that the Hohenstaufen rulers of Sicily and Spain incorporated into their fundamental laws.
And popular sovereignty was hotly debated by jurists. In particular, the Lex Regia had been the site for a debate over popular sovereignty in the century or so before Frederick promulgated the Constitutiones. Justinian had incorporated the Lex Regia into his Corpus Juris in several places (i.e., the Digest, the Codex, and the Institutes). Glossators like Irnerius, Placentinus, and Rogerius had occasion to comment on the codifications of the Lex Regia and its consequences. Their comments on the Lex Regia have a direct bearing on the question of popular sovereignty. The commentarial tradition also shows that tightly bound up with the question of the Lex Regia and popular sovereignty is the question of custom and custom’s effect on law.
Daniel Lee, in his Popular Sovereignty in Early Modern Constitutional Thought, traces the debate over the Lex Regia deftly. Irnerius, commenting upon Justinian’s reminder (Dig. 1.3.32) that the Roman people could abolish a law through custom, held that such a provision was an artifact of the days before the Lex Regia. The people’s lawmaking power had been transferred altogether to the emperor and they retained none of it. Placentinus likewise held that the transfer from the people to the emperor had been a total one, which could not later be revoked. Rogerius joined the chorus, affirming that the people had given the emperors their sovereignty once and for all by the Lex Regia.
At about the same time, however, the canonist Gratian’s Decretum gives great importance to custom in canon law (e.g., D.1 d.a.c.1), taking his fundamental treatment of custom from Isidore’s Etymologies (e.g., D.1 c.5). The Glossators to Gratian observe that, while he implies that custom cannot prevail against law in D.1 c.5, elsewhere he appears to hold differently. In particular, the Glossators point to D.8 c.7 to argue that custom can prevail against law when the custom has been held for a long time, “maintained with a contrary popular judgment,” and done with a belief that acting in accordance with custom is rightful. The Glossator cites the Liber Extra and the Digest in support of this proposition.
Somewhat after Irnerius, Placentinus, and Rogerius articulated their theory that the Lex Regia was a total and irrevocable transfer of the Roman people’s sovereignty to the emperors, Lee notes that the jurist Azo set forth a different view. Azo was confronted with Justinian’s peremptory statement in the Codex that the emperor alone is the author and interpreter of law (Cod. 1.14.12). To the emperor was conceded the authority to make laws and the authority to make laws necessarily includes the authority to interpret laws (Cod. 1.14.12.5). This certainly presents problems for Azo, who wants to find some room for popular sovereignty. Azo, in Lee’s account, gets around the problem by looking back to the Lex Regia and the philological question of what the Roman people did.
It is true, Azo argues, that the people transferred their right to make and interpret law to the emperor by the Lex Regia. However, they transferred it, they did not abdicate it. And if they conceded power to the emperor, implicit in the concession is the power to revoke it or to reclaim what was conceded. In Pomponius’s long historical account of the development of the magistracies, incorporated into Justinian’s Digest as the bulk of the title De origine juris et omnium magistratuum et successione prudentium, one finds several instances when the people reclaimed their sovereignty and expelled uncongenial kings or magistrates (Dig. 1.2.2.3, 1.2.2.14, 1.2.2.24).
Lee observes that Azo introduces a neat distinction between the people as a corporate body, which has retained the authority to make law, and the collection of the individual persons comprising the people.[1] On Azo’s account, the Lex Regia only divests the collection of the individual persons comprising the people of the power to make and interpret law, the people as a corporate body are not thus divested. The emperor is the only individual who can make and interpret law. No other individual person can do so. But the people can. To the king’s two bodies identified by Ernst Kantorowicz, we may now add the people’s many, many bodies identified by Azo.
Here, one might turn to the argument in Charles de Koninck’s On the Primacy of the Common Good about parts and wholes. Quoting the Summa Contra Gentiles, De Koninck reminds us that “what is good and best in the universe consists in the order which its parts have among themselves, which order cannot exist without distinction; for indeed it is this very order which constitutes the universe in its character of being a whole, which latter is what is best in it” (III Cont. gent. c. 39). As the universe, so the state (cf. Augustine, De civitate Dei 19.13). Azo’s argument seems to fit nicely into the concept of order that undergirds the Thomistic common good. Certainly the distinction between the emperor, who can make law as an individual, and the other individuals in the empire, who by and large cannot make law as individuals, points toward the distinction without which there is no order.
The upshot of all of this, according to Azo, is that the people retained two powers following the establishment of the emperor through the Lex Regia. They can make valid law by custom and they can revoke the emperor’s power to make laws (by revolution, presumably). Here, Azo relies on the statement of Julian, faithfully recorded in the Digest: “given that statutes themselves are binding upon us for no other reason that they have been accepted by the judgment of the populace, certainly it is fitting that what the populace has approved without any writing shall be binding upon everyone” (Dig. 1.3.32). Gratian makes a similar point (D.12 c.6).
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This, then, is the background of Aquinas’s treatment of popular sovereignty in the Summa Theologiae. Professor Alicea relies heavily on ST I-II q.90 a.3, especially the corpus, to make certain claims about Aquinas and popular sovereignty. However, he fails to observe that Aquinas implicitly recognizes the sort of transfer of power through a mechanism like the Lex Regia in his account. The making of a law belongs either to the whole people or to some public person who has the care of the whole people (ST I-II q.90 a.3 co.). The concept of a public person acting on behalf of the whole people appears elsewhere in the Summa (e.g., ST II-II q.65 a.1 ad 2). This acknowledgment points specifically toward the Lex Regia. But Professor Alicea is silent on the debate over the Lex Regia and its significance, to say nothing about Aquinas’s intervention in such a debate through the Summa.
It is no surprise then to discover that Professor Alicea also does not examine the medieval debate over customary law in the context of popular sovereignty and the Lex Regia. However, Aquinas himself intervenes in that debate. In ST I-II q.97 a.3, Aquinas holds that custom “habet vim legis, et legem abolet, et est legum interpretatrix”—“has the force of law, and abolishes law, and is the interpreter of law” (ST I-II q.97 a.3 co.). And Aquinas appears to side with Azo’s distinction between the people as a corporate body and the collection of individuals that make up the people in a definitive way, arguing that “[u]nde licet singulae personae non possint condere legem, tamen totus populus legem condere potest”—“Wherefore although each individual cannot make laws, yet the whole people can” (ST I-II q.97 a.3 ad 3).
Professor Alicea even cites ST I-II q.97 a.3 in defense of the idea that the people can signify their consent by means other than voting up or down. It is a shame that the law review of St. Joseph County’s best law school apparently imposes such brutal limits on length, since he cites it in support of the proposition that the acts of the people manifest their consent. That is true as far as it goes, but of course the entirety of ST I-II q.97 a.3 is devoted to an analysis of custom and concludes with the declaration that custom “has the force of law, and abolishes law, and is the interpreter of law” (ST I-II q.97 a.3 co.). One wishes Professor Alicea had had the time to address the significance of the passage more broadly than for its semiotic value. (Then again, maybe not: he cites ST I-II q.105 a.1 for the proposition that voting is how the people best signal their consent.)
In other words, Aquinas is not issuing edicts and definitions in a vacuum. He is taking part in one of the liveliest disputes of medieval jurisprudence, both in his concept of popular sovereignty (ST I-II q.90 a.3 co.), and in his decision for Azo and the Glossators on Gratian and against Irnerius, Placentinus, and Rogerius with respect to custom (ST I-II q.97 a.3 co.). As a participant in the debate—indeed, it may be said that Aquinas settles the debate and in favor of the minority view—then Aquinas’s various interventions must be read as a whole. It would do violence, to be sure, to take scissors and paste to the Prima Secundae to construct a “Thomas Aquinas,” who just happens to say what must be said to come up with the right answer.
Instead, given that the other participants in the debate connected popular sovereignty, the Lex Regia, and customary law, we should assume that, when Aquinas makes a statement, especially a statement definitively agreeing with one side in the debate, Aquinas likewise understood the deep connection between popular sovereignty, the Lex Regia, and customary law. His endorsement of Azo’s position ought to be understood as precisely that: an endorsement of Azo’s position. Aquinas’s concept of popular sovereignty therefore must be understood to involve strict limits on its expression: customary law and revolution.
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Such limits pose serious problems for Professor Alicea. I will consider one. He argues, rebutting the so-called dead-hand objection to originalism, that our continued participation in American society means that we consent to be governed according to American political authority. The Constitution is a means of transmitting that political authority. The people’s obligation to stably transmit political authority means that the Constitution expresses the political authority that has been transmitted. Ergo, originalism. It might have been easier to say “America: love it or leave it!”
Professor Alicea has no problem with revolution on this account. He even says so, though he raises some prudential questions. But there is no room in his analysis for the people to express their reserved sovereignty through custom. That is to say, Professor Alicea disagrees significantly with Azo and Aquinas that the transmission of political authority means that the people retain not only the authority to revoke, even through force, their concession of political authority but also the authority to make laws acting corporately—that is, through custom (cf. ST I-II q.97 a.3 ad 3). Professor Alicea’s silence on the question generally means that one would not know that he disagrees in such a stark manner with Aquinas.
The exercise of reserved sovereignty through custom is an enormous problem for any originalist, but fatal for a moralist like Professor Alicea. The whole point of the exercise was to insist that God wants us to be originalists and to condemn the sin of Vermeule. Professor Alicea carefully marshals the Common Doctor’s account of popular sovereignty in defense of his argument. But we now see that the Common Doctor sides with Azo against Irnerius, Placentinus, and Rogerius. Aquinas holds with Azo—explicitly in ST I-II q.97 a.3 ad 3—and holds that the people have a reserved power to make, abolish, and interpret law through custom.
Indeed, Professor Alicea is at pains to rebut Professor Jack Balkin, who holds that the Constitution must be interpreted according to the people’s changing understanding of the Constitution. Professor Balkin holds that the people express this changing understanding in all sorts of ways, including by arranging for the appointment of judges who will implement the current understanding of the Constitution. Thomas Aquinas holds, as we have seen, that custom has the force of law, abolishes law, and interprets law (ST I-II q.97 a.3 co.). Here, Aquinas follows Azo and Gratian and the Roman jurists collected in the Digest. Professor Alicea objects, claiming that this will lead to the collapse of the distinction between constitutional politics and ordinary politics. But his objection falters before Aquinas’s claims, which are far more amenable to Professor Balkin’s position.
All of this is, of course, a calamity for Professor Alicea. Originalism requires that the original meaning of the Constitution control. Subsequent amendments, abolitions, and interpretations via custom are the end of originalism. Yet there is only one Thomas Aquinas and only one Treatise on Law. Professor Alicea cannot have ST I-II q.90 a.3 for the proposition of popular sovereignty without ST I-II q.97 a.3, which explains an important point regarding that popular sovereignty, particularly the powers that the people retain after transmitting their authority to public persons. To attempt to do otherwise, which I submit is precisely what Professor Alicea does, is to take scissors and paste to Aquinas to construct an “Aquinas” in service of ideology. Originalism might be a virtue with a divine sanction—though I decline on Professor Alicea’s account to decide—but so too is justice, even justice to Thomas Aquinas.
But wait, in the words of the great jurist Ron Popeil, there’s more. Professor Alicea purports to derive the requirement of a stable transmission of political authority for the common good from some modern authors, including Suárez. Professor Alicea, who by and large prefers to cite to compendiums and secondary sources, appears to be talking about De Legibus book I, chapter 12. There, Suárez does announce a requirement of stability for law. However, Suárez finds stability as a specification of the requirement that law be an ordinance of the reason (De Legibus I.12). Suárez here cites ST I-II q.97 a.1 ad 2 and Papinian collected in the Digest (Dig. 1.3.1). Of course, ST I-II q.97 a.1 ad 2 states that human laws are, in fact, changeable. And more than this: in the definition of law, ST I-II q.90, reasonableness and ordering to the common good are two separate requirements. Professor Alicea seems, therefore, on Suárez’s account of Aquinas to conflate the two requirements and claim that stability, which Suárez says is a specification of reason, is necessary for ordering to the common good.
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It is understandable that originalists—so often accused of positivism—wish to find a basis in the natural law, indeed in morality, for originalism. And it is understandable that a Catholic originalist would seek to enlist Thomas Aquinas in his quest to ascend from originalist to moralist. However, Professor Alicea demonstrates, perhaps unintentionally, the dangers of such an ascent. Thomas Aquinas was not an oracle, handing down first principles anew, but a participant in the debates of his age—including the debate over popular sovereignty, the Lex Regia, and custom, which took place in both civil law and canon law. As a result, Aquinas presents a grave challenge to Professor Alicea’s argument, which he mostly bypasses. Perhaps Professor Alicea does not, in the final analysis, need Thomas Aquinas. Perhaps he can get to the promised land of morality and offer his beleaguered colleagues a basis to rebuke the supposed sin of Vermeule using modern authors like Suárez and Maritain. But I doubt it.
Pat Smith
[1] It should be noted that Azo’s distinction between the people as a corporate body and the collection of individual persons comprising the people is the minority view in the debate, and certainly not one shared by the jurists who held the view that the Lex Regia left the people with no reserved powers.
