Natural Law and Popular Sovereignty: A Response to My Anonymous Critic

There is an ongoing debate among scholars and commentators about the compatibility of originalism and the natural-law tradition. Most prominently, Harvard law professor Adrian Vermeule and emeritus Amherst professor Hadley Arkes have argued that originalism is incompatible with the natural-law tradition. I have taken the opposite view, arguing in an article in the Notre Dame Law Review (NDLR) that originalism is consistent with the natural-law tradition in the American context. My argument is based on the natural-law position that ultimate political authority rests with the people of a society, and I contend that only originalism respects the people’s legitimate authority in the American constitutional system. This disagreement has led to exchanges between me, Vermeule, and Arkes here at NR and at the online home base for natural-law critics of originalism, Ius & Iustitium. Last week, Ius & Iustitium published another critique of my views, this time by an anonymous author who is a “recent federal judicial law clerk.” Because this critique — unlike previous critiques I have answered — focuses on the popular-sovereignty component of my argument for originalism, it seems worthwhile to respond, and I will continue with my past practice of making my response here at NR. For convenience, I will refer to the author as “anonymous law clerk” or “ALC” and will use the generic masculine pronoun.

ALC’s critique rests on a number of misunderstandings of my position and of the natural-law tradition. His front-line argument is that, because I have argued that the people of a society hold ultimate political authority within their society, I have overlooked the fact that authority exists to “solve[] coordination problems” that the people as a whole cannot resolve, and it follows that authority must be vested in some person or subgroup within the society rather than in the people of the society in general.

This is a puzzling criticism, since I spend a good deal of my NDLR article on this topic making precisely the argument that ALC claims I deny.¹ In my NDLR piece, I argue that “the common good is what justifies authority”;² the common good requires resolution of coordination problems (I use the same traffic-laws example ALC does);³ and “due to the practical difficulties of direct democracy in a society of any significant size (not to mention other problems with direct democracy), in the vast majority of cases ‘the common good demands that power be placed in a few hands.’”⁴ That is, the common good usually demands that the people vest authority in a person or subgroup to govern on their behalf.

The real disagreement between ALC and me is not whether some person or subgroup must be vested with authority to solve coordination problems; it is over how that authority comes to be vested in that person or subgroup (and whether it matters how that authority comes to be vested).⁵ It is a disagreement about whether, as I believe, the people are vested with ultimate political authority and transmit a portion of their authority to their government or, as ALC believes, “[w]hoever in fact provides for the common good of the community in question possesses the authority to do so.”

The view that the people of a society hold ultimate political authority within their society is, as I demonstrate in my NDLR article, the view of natural-law theorists from Aquinas to Cajetan to Suarez to Bellarmine to Simon to Rommen, among others.⁶ What is remarkable about this consensus (which, aside from offering a different interpretation of Aquinas, ALC does not dispute) is that these theorists disagree among themselves about all manner of important things and yet are unanimous in holding that ultimate political authority resides in the people.

There are various arguments that these theorists have advanced for their shared conclusion. The one I present in my article was articulated by Aquinas in Question 90, art. 3 of the Prima Secundae.⁷ Aquinas argues that, because lawmaking authority exists to secure the common good, it must be vested in whoever has responsibility for securing the common good. Because we have a responsibility to pursue our own good, and because securing the common good is necessary to or part of (depending on one’s conception of the common good) our own good, each of us in society has responsibility for securing the common good. Thus, each person in society is vested with political authority. As noted above, because direct democracy ordinarily cannot secure the common good, the people are usually obligated to transmit a portion of their authority to a person or subgroup to govern in their name, but they retain ultimate authority, which is why they can, in limited circumstances, be justified in altering or abolishing their government if it fails to secure the common good.

ALC dismisses Aquinas’s argument as merely attempting to show that private individuals do not have the authority to make law, but he fails to engage with the logic of the argument outlined above.⁸ In fact, elsewhere Aquinas is quite clear that he is not simply saying that “each individual cannot make laws”; he is also affirming that “the whole people can.”⁹ And, as noted, ALC ignores the centuries of natural-law theorists who, like Aquinas, endorsed the conclusion that the people hold ultimate political authority.

ALC instead focuses on a different issue: How can the people transmit authority, given the coordination problem of determining the means of manifesting their consent to the transmission? In my article, I argue that, because the common good requires transmission of authority, the manner of transmission can be whatever means “is consistent with the imperative to secure the common good in the context of a particular society when the transmission takes place.”¹⁰ This could occur in many different ways, one of which is custom. Here, ALC’s concession that “custom” can determine who wields authority is important. If custom can determine which individual or subgroup in a society has authority (as ALC argues), then it follows (contrary to ALC’s position) that one need not rely on a person or subgroup to determine the means by which authority is vested, since custom, by its nature, is not determined by one person or subgroup. Rather, as Aquinas says, “the consent of the whole people [can be] expressed by a custom,”¹¹ and custom can therefore determine the means by which authority can be transmitted from the people to their government.

ALC’s confusion on this point is demonstrated by his simultaneous affirmation that custom can vest authority in a government and his denial that the people are “capable of making laws” apart from their government. Aquinas, in arguing that custom has the force of law, rejects a position very much like — if not identical to — ALC’s position: that only “those public men whose business it is to govern the community” can make laws.¹² Instead, he affirms that custom is not only a way in which “the whole people” make law apart from their government; it can be higher than law enacted by their government.”¹³ The “making of a law,” after all, flows from the responsibility to secure the common good that “belongs either to the whole people, or to someone who is the viceregent [that is, a person who acts in the place] of the whole people.”¹⁴

That brings us to ALC’s understanding of authority: “[w]hoever in fact provides for the common good of the community in question possesses the authority to do so.” “[P]olitical authority come[s] to be” through “[c]hance, virtue, force, and custom.” In ALC’s view, it is irrelevant how a government comes to occupy power; all that matters is that the government rule well once in power.¹⁵

Such a position eviscerates a core component of the common good: the rule of law. A government that comes to power by “force” — to use ALC’s word — in violation of prior law designating the legitimate government does serious harm to the common good.¹⁶ For that reason, Aquinas condemns usurpations of power.¹⁷ In Russell Hittinger’s words: “Because usurpation is an offense against the common good, it will never do to cite the common good as the reason for usurping the authority.”¹⁸

That is why John Finnis, in advancing a related but meaningfully different version of ALC’s position, qualifies his view by stating that a would-be authority lacks authority insofar as they violate the rule of law in obtaining power.¹⁹ For the reasons I provide in my piece, Finnis’s account of how a government comes to possess authority does not withstand scrutiny,²⁰ but it is certainly more plausible than a bald declaration that authority can be legitimate irrespective of the means by which it was claimed. The latter view — ALC’s view — is in direct conflict with the natural-law tradition.

ALC concludes by asserting that my position — specifically, my defense of originalism based on my account of authority — is inconsistent with Aquinas’s view that positive law must accord with natural law. In fact, I endorse Aquinas’s view and devote an entire section of my NDLR article to explaining why originalism in the American constitutional context is consistent with Aquinas’s understanding of law,²¹ though the reader would not know that from reading ALC’s post.²² One striking feature of ALC’s post in this regard — which is a common theme for natural-law critics of originalism — is a failure to engage in any meaningful way with the particular features of the American constitutional order (e.g., the historical American understanding of the judicial power, the significance of Article V, etc.). Instead, these critics tend to skip from general theoretical premises to a specific theory of constitutional adjudication without considering how the legitimate determinations of our regime — such as the allocation of powers within our system — bear on the morality of that theory. Given the natural-law principle that the distribution of power within a regime is largely a matter of legitimate determination that carries moral significance, the failure to take such determinations into account is a serious error that leads to all kinds of mistakes among originalism’s natural-law critics, as I have recounted at NR before. Indeed, it is notable that at no point does ALC provide an answer to the question with which he begins his post — who is the legitimate lawmaker in the United States who promulgated the Constitution — or to the question that follows from it: Is the Constitution “law” as understood under the Thomistic definition of law? Natural-law critics of originalism habitually avoid answering those questions, and their silence is telling.

While I appreciate ALC’s exploration of the issues he raises, his critique misunderstands my view, ignores my extensive responses to some of the arguments he makes, and endorses an understanding of political authority that is irreconcilable with the natural-law tradition.

1. J. Joel Alicea, “The Moral Authority of Original Meaning,” 98 Notre Dame L. Rev. 1, 16–43 (2022).
2. Id. at 23; id. at 16–24.
3. Id. at 22–23.
4. Id. at 27–28 (quoting Yves Simon, Philosophy of Democratic Government 168 [1951]).
5. ALC agrees with me — in line with St. Paul — that the ultimate source of political authority is God. The question here is the more proximate source of the political authority wielded by a person or subgroup within a society.
6. Id. at 24–30.
7. Id. at 24–27.
8. ALC’s argument that popular sovereignty is impossible because a community cannot exist apart from a political authority relies on an equivocation of what he means by “community,” and under either interpretation of that term, his argument does not succeed. If he is saying that a community in the sense of a social group can exist only when subject to authority, that is clearly false, since friendships exist apart from authority. A nation — as opposed to a state — is an example of a larger social group that continues to exist as a constant even as political authorities are absent or change (e.g., the French have continued to be the French even in times of revolution and during successive Republics). If he is instead saying that a community in the sense of a polity or state can exist only when subject to authority and that the people cannot themselves be that authority, that is begging the question, since the dispute is over whether the people can be that authority.
9. Aquinas, ST, I-II, Q. 97, art. 3.
10. Id. at 40–41.
11. Aquinas, ST, I-II, Q. 97, art. 3.
12. Aquinas, ST, I-II, Q. 97, art. 3.
13. Id. In Article V of the U.S. Constitution, the people disclaimed the ability to alter the Constitution (and thus enact law superior to federal statutes) through custom, but that does not change the fact that they can, in principle, create law through custom. Alicea, supra, at 49.
14. Aquinas, ST, I-II, Q. 90, art. 3.
15. See ALC’s footnote 8. Note that neither of the quotations on which he relies supports the proposition that the means of attaining power are irrelevant to the legitimacy of authority.
16. This does not preclude the possibility of revolution under the traditional popular-sovereignty account of authority. Since the people hold ultimate political authority, there is no violation of the rule of law if they alter or abolish a government acting contrary to the common good, and they may legitimately use force to accomplish that abolition under limited circumstances. See Alicea, supra, at 28–29.
17. Aquinas, ST, II-II Q. 60, art. 2.
18. Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World 103 (2003).
19. John Finnis, Natural Law and Natural Rights 250 (2nd ed., 2011).
20. Alicea, supra, at 30–32.
21. Id. at 43–59.
22. Likewise, ALC’s assertion that popes have “condemned popular sovereignty” ignores the numerous authorities I cite refuting that erroneous interpretation of papal statements on this issue. Id. at 37 n.267.