By Jonathan Culbreath

THE flurry of controversy that erupted over Adrian Vermeule’s Atlantic article calling for the abandonment of “originalism” could be greatly clarified by a closer look at St. Thomas Aquinas’ treatise on law. Some originalist readers of Vermeule’s piece appear to labor under the impression that he is an advocate of judicial supremacy – the “tyranny of the unelected” -- which would place him at odds with both the American tradition and even, some argue, the teaching of St. Thomas. Originalism itself, after all, is meant to place a limit on the discretion of judges by subjecting them to the written law, and especially the fixed meaning of the written Constitution. By freeing the judge from the constraints of written law, ‘common-good constitutionalism’ risks empowering the judge to impose a private and arbitrary conception of the law. 

First, lest any illusions remain concerning Professor Vermeule, it must be observed that he has written a whole book in defense of judicial deference to the administrative state, which hardly demonstrates any commitment to judicial supremacy. On the contrary, it demonstrates a commitment to the supremacy of the executive power -- whom St. Thomas would call the sovereign.

Accordingly, a brief study of St. Thomas’ doctrine of law will unveil a concept of jurisprudence that neither grants supremacy to judges, nor cedes to originalism the premise that judges may not invoke the natural law or the common good in their reasoning. Thus, although Thomas accords greater powers to the figure of the judge than originalists would concede, nonetheless the judge occupies a secondary role in subordination to the sovereign, who has the primary task of ruling for the common good.

. . . . . .

  It is commonplace for ‘Whig Thomists’ to read Thomas Aquinas political writings as an inchoate vindication of the American constitutional order, with its neat separation of powers, its written Constitution, and “limited government,” which all provide the foundation for a society built not upon forced or legislated morality, but the free and open dialogue of ideas. To quote Fr. John Courtney Murray, “‘A free people under a limited government’ puts the matter more exactly. It is a phrase that would have satisfied the first Whig, St. Thomas Aquinas.” St. Thomas is thus portrayed as one in a long line of protagonists in the Whiggish history of ‘Western Civilization.’

The legal theory of originalism builds off this same Whig foundation, strategically implementing the unspoken morality of classical liberalism by confining the practice of jurisprudence within the narrow limits of written Constitution and written precedent. This is meant to limit the power of judges to acts of interpreting written law, so that the judiciary does not effectively become an independent tyranny of its own. At first sight, this may seem to be in harmony with what St. Thomas writes here: 

..."it is better that all things be regulated by law, than left to be decided by judges": and this for three reasons. First, because it is easier to find a few wise men competent to frame right laws, than to find the many who would be necessary to judge aright of each single case. Secondly, because those who make laws consider long beforehand what laws to make; whereas judgment on each single case has to be pronounced as soon as it arises: and it is easier for man to see what is right, by taking many instances into consideration, than by considering one solitary fact. Thirdly, because lawgivers judge in the abstract and of future events; whereas those who sit in judgment of things present, towards which they are affected by love, hatred, or some kind of cupidity; wherefore their judgment is perverted. (ST, I-II, q. 95, a. 1, ad 2)

 What is this but the lofty doctrine of constitutional originalism: judges held accountable to the written law! A perfect justification of American constitutionalism.

However, such an interpretation is based on a selective reading, and it avoids key passages where Thomas concedes greater range to judicial powers than originalists would be comfortable with. In the words of Fr. Anthony Giambrone, O.P., “For Aquinas, the judge was also the legislator—a plenipotentiary, like a king—not simply the hand-bound interpreter of some legislature’s promulgated text.” Yet it does not follow that Thomas would therefore defend anything like “judicial supremacy.” Indeed, it is imperative not to read either the modern notion of originalism or the modern notion of judicial supremacy back into his texts. Rather, it is necessary to understand Aquinas’ conception of the judge in light of his wider concepts of 1) the purpose of law, and 2) the sovereign who makes the laws. The relation of the judge to the sovereign in Thomas’ conception is nothing like the American “separation of powers,” which lies behind both originalism and judicial supremacy. For Thomas, the judge is a minister of the sovereign. This simple observation contains much larger implications for both the judge and the sovereign, which it will be expedient to draw out further.

To begin with, let us wholeheartedly grant what the Angelic Doctor proves in the above text, which is taken from an article in the Summa on the utility of making laws in the first place. Thus far, we appear to be in agreement with the originalists, whose entire purpose is to preserve the “rule of law” through judicial restraint. As the late Justice Antonin Scalia stated:

A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect ‘current values.’ Elections take care of that quite well. The purpose of constitutional guarantees of individual rights that are at the center of this  controversy–is precisely to prevent the law from reflecting certain changes in original  values that the society adopting the Constitution thinks fundamentally undesirable. (“Originalism: The Lesser Evil”)

In other words, for Scalia, the purpose of law -- and thus of originalism -- is not to reflect any judgement of “value,” but merely to protect the rights of individuals who are entitled to make value judgements on their own. When a judge makes a ruling based on his own value judgement, he effectively erects a law that reflects a value, thereby constraining the individual rights which the Constitution was meant merely to protect. As the Justice stated elsewhere, “The people know that their value judgments are quite as good as those taught in any law school--maybe better.” (Planned Parenthood vs. Casey.)

This is in stark contrast to what St. Thomas deems to be the purpose of law. Indeed, according to Thomas, it belongs to the office of the lawmaker to teach virtue according to a clear and well-defined concept of the human good. Law is explicitly a matter of making a “value judgment” and imposing it upon a populace in need of moral education. Thus, he writes:

A man needs to receive this training [in virtue] from another, whereby to arrive at the perfection of virtue. . . And since some [men] are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such [men] to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws. (ST, I-II, q. 95, a. 1)

Accordingly, the (non-Whig) Thomist objection to originalism has nothing to do with encouraging lawlessness or negating the utility of law. It is exactly the reverse: it requires lawmakers to live up to their vocation by truly “legislating morality,” according to a reasoned conception of the natural law and the common good. After all, the origin of human law is nowhere else but the natural law itself, according to ST, I-II, q. 95, a. 2.

However, it cannot be said that this Thomistic jurisprudence advocates leaving the regulation of social affairs to the arbitrary judgments of individual judges, free of any unitary standard of law. On the contrary, it is only because the law ought to embody the natural law and the common good, as per ST, I-II, q. 90 a. 4 and q. 95, a. 2, that judges too ought to rule in accord with law, rather than on the basis of their private opinions. Natural law and the common good ought to play a central role in jurisprudential reasoning itself. This is entirely contrary to the originalist approach, by which the judge is obliged to “bracket” the natural law and remain strictly confined within written procedures and precedents, which themselves acknowledge no debt to natural law. Such an approach presupposes a positivistic understanding of law according to which human law has no other source but itself, relating to no concept of natural law beyond itself.

In other words, since human law derives its legitimacy only from the natural law itself, it follows that this natural law must occupy a central place in the reasoning of the judge. This means that the proper and per se limit on the judge’s reasoning is not written law, but the natural law, even though, because the natural law is (hopefully) embodied in the written law, the judge ought indeed to follow the written law. Thus, in ST, II-II, q. 60, a. 5, in response to the question “Whether we should always judge according to the written law,” St. Thomas answers affirmatively, echoing his previous statement in ST, I-II, q. 95, a. 1, ad 2, but with the following critical qualification: 

Even as unjust laws by their very nature are, either always or for the most part, contrary to the natural right, so too laws that are rightly established, fail in some cases, when if they were observed they would be contrary to the natural right. Wherefore in such cases judgment should be delivered, not according to the letter of the law, but according to equity which the lawgiver has in view. Hence the jurist says . . : "By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man." In such cases even the lawgiver himself would decide otherwise; and if he had foreseen the case, he might have provided for it by law. (ST, II-II, q. 60, a. 5, ad 2)

Equity is the virtue which dictates the adaptation of the purpose of the law to concrete situations unforeseen by the (written) law itself. This is in accord with what Thomas writes in ST, I-II, q. 96, a. 6, that those subject to the law may act beside the letter of the law when, in a circumstance unforeseen by the legislator, the written law is inapplicable or would be harmful in its application. In such circumstances, one acts beside the letter of the law in order to preserve the intention of the legislator towards the common good. A judgement is made according to what the legislator would have directed had he foreseen the unusual circumstance. Thus, such a judgement of equity presupposes the legislator’s power to dispense from human laws: “he who is placed over a community is empowered to dispense in a human law that rests upon his authority, so that, when the law fails in its application to persons or circumstances, he may allow the precept of the law not to be observed.” (ST, I-II, q. 97, a.4.) The judge who thus acts beside the letter of the law acts as a kind of minister of the primary legislator, and his judgment is but an extension of the legislator’s act of reasoning about what is moral and conducive to the common good. Thus: “He who follows the intention of the lawgiver, does not interpret the law simply; but in a case in which it is evident, by reason of the manifest harm, that the lawgiver intended otherwise. For if it be a matter of doubt, he must either act according to the letter of the law, or consult those in power.” (ST, I-II, q. 96, a. 6, ad 2) 

Who are those in power? Here St. Thomas refers to the sovereign or the lawgiver. Thomas does not separate the legislative and executive branches; such a separation would have been unknown to him, even if the distinction between legislative and executive functions was commonplace. The lawgiver is simply he who has care of the community, whether the people collectively or some public person, whose responsibility it is to reason concerning what is for the common good. The dictates of such reasoning are what constitute the essence of law itself: “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” (ST, I-II, q.90, a.4)

Aquinas further insists that the sovereign is only he whose reason possesses the power of coercion – which arguably belongs to the execution of what is legislated. “A private person cannot lead another to virtue efficaciously: for he can only advise, and if his advice be not taken, it has no coercive power, such as the law should have, in order to prove an efficacious inducement to virtue, as the Philosopher says (Ethic. x, 9). But this coercive power is vested in the whole people or in some public personage, to whom it belongs to inflict penalties...” (ST, I-II, q. 90, a. 3, ad 2). Likewise, in the treatise on the virtue of justice, he writes: “it is lawful to kill an evildoer in so far as it is directed to the welfare of the whole community, so that it belongs to him alone who has charge of the community's welfare. . . Now the care of the common good is entrusted to persons of rank having public authority: wherefore they alone, and not private individuals, can lawfully put evildoers to death.” (ST, II-II, q. 64, a. 3)

Further still, because the sovereign is himself the author of law, he is not subject to law in the way that his subjects are; for he alone possesses the power of coercion, and he alone can change or dispense from the law according as he sees fit for the common good in various circumstances: “The sovereign is said to be ‘exempt from the law,’ as to its coercive power; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. . . Again the sovereign is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place.” (ST, I-II, q. 96, a. 5, ad 3)

In summary, the conclusions to be drawn from these texts are quite distinct from those maintained by the originalists and proponents of classical liberalism, yet they also by no means amount to a denial of the necessity of law – nor even a denial of the prudence of written law! Rather, St. Thomas teaches a theory of law that itself is radically different from the originalist conception of law: law is an ordinance of reason for the common good promulgated by him who has power over the community (ST, I-II, q. 90, a. 4), derived from the natural law itself (ST, I-II, q. 95, a. 2), for the purpose of making men virtuous (ST, I-II, q. 92, a. 1; q. 96, a. 3), and possessed of the power of coercion (ST, I-II, q. 90, a. 3; q. 92, a. 2; II-II, q. 64, a. 3). The legislator or sovereign, moreover, is privileged with the authority to change the law if he deems necessary for the common good and the promotion of virtue (ST, I-II, q. 97), including changing the very constitution of a regime from a democratic to a more aristocratic form (ST, I-II, q. 97, a. 1), and dispensing from the law if morality or the circumstances demand (cf. q.97, a.4) -- hence he himself is said to be “above the law” (ST, I-II, q. 96, a. 5, ad 3). Judges, finally, are entitled to act as ministers of the sovereign, dispensing from the law in cases where the sovereign himself would do so (ST, I-II, q. 96, a. 6; II-II, q.60, a.5, ad 2), on the basis of the common good which is in the intention of the sovereign -- thus, a judge is in effect a “legislator of last resort.”

This doctrine is concisely summarized by Adrian Vermeule, in his exposition of ‘common-good constitutionalism’:

[C]ommon-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

As I stated at the outset, originalists need not fear that the figure of the judge is here exalted into an omnipotent and arbitrary despot. The point of Thomistic jurisprudence is not to accord to judges the right of adjudicating willy-nilly according to their private conceptions of the law, nor to do away with written law and thus devolve into anarchy, but merely to restore the common good and the natural law to the process of legal and jurisprudential reasoning. Indeed, the judge occupies a subordinate role in this entire scheme, as a minister of the sovereign whose grave obligation it is to exercise his reason for the common good. The sovereign, in turn, is subordinate to no one but the supreme and infallible lawgiver: God Himself, represented in His Church, who is author of the natural law from which all human law derives.

 

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Acton, Lord John Emerich Edward Dalberg. “The History of Freedom in Christianity.” http://www.mondopolitico.com/library/lordacton/freedominchristianity/freedominchristianity.htm

 Giambrone, Anthony. “Scalia v. Aquinas: lessons from the saint for the late, great justice.” In America Magazine. March 01, 2016. https://www.americamagazine.org/issue/who-judge

 Gregg, Samuel. “Thomas Aquinas versus Adrian Vermeule.” At the Acton Institute. April 7, 2020. https://www.acton.org/publications/transatlantic/2020/04/07/thomas-aquinas-versus-adrian-vermeule

 Jipping, Thomas. “The Constitution Must Control Judges, Not Vice Versa.” In a Legal Memorandum of The Heritage Foundation. No. 262 | April 7, 2020. https://www.heritage.org/sites/default/files/2020-04/LM262.pdf

 Murray, John Courtney. The American Proposition. New York: Sheed & Ward. 1960. https://www.library.georgetown.edu/woodstock/Murray/whtt_index

 Scalia, Antonin. “Originalism: The Lesser Evil.” https://docplayer.net/43972545-Originalism-the-lesser-evil-antonin-scalia.html

 Scalia, Antonin. Planned Parenthood of Southeastern Pennsylvania vs. Casey. June 29, 1992. Dissenting Opinion. https://www.law.cornell.edu/supct/html/91-744.ZX4.html

 Vermeule, Adrian. “Common-Good Constitutionalism.” In The Atlantic. March 31, 2020. https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/

 Vermeule, Adrian. “Justice Scalia & Thomas Aquinas.” Parts 1-3. Soundcloud link: https://soundcloud.com/thomisticinstitute/justice-scalia-thomas-aquinas-part-1-dr-adrian-vermeule

 Vermeule, Adrian. Law’s Abnegation: From Law’s Empire to the Administrative State. Harvard University Press, 2016. https://www.amazon.com/Laws-Abnegation-Empire-Administrative-State/dp/0674971442