Subscribe now

Share

One of the most persistent and passionate debates in contemporary political thought, especially in the Hispanic and Catholic world, revolves around the compatibility between Catholicism and liberalism. This debate is not new: it has its roots in the 19th century, with the tensions between the Church and liberal regimes, and it reactivates periodically in academic, ecclesiastical, and cultural forums. However, intervening in this controversy presents an initial considerable difficulty: there is no prior agreement on what exactly is meant by “liberalism.” Without this conceptual clarification, dialogue becomes sterile, as different realities are compared and profound misunderstandings are generated.

Liberalism as a complete doctrine versus liberalism as mere political theory

The term “liberalism” encompasses two very different realities that should be distinguished with precision. On the one hand, it can be understood as a comprehensive philosophical or metaphysical doctrine that includes an epistemology, an anthropology, an ethics, and even a vision of history and society. On the other, as a more modest and pragmatic political and institutional theory, focused on operational principles such as limited government, the rule of law, separation of powers, representative democracy, the protection of individual rights, and the market economy.

This distinction is decisive. Not everyone who defends liberal institutions subscribes to the liberal philosophical worldview in its most radical version, and vice versa. Ignoring this difference generates frequent confusions.

Metaphysical or philosophical liberalism: a problematic compatibility

When liberalism presents itself as a complete doctrine of reality, its compatibility with Catholicism becomes highly problematic, if not impossible in several central points.

First, philosophical liberalism tends to reduce reason to an instrumental tool of an empiricist or utilitarian nature. Reason is no longer considered capable of knowing the deep nature of things (metaphysics) or a universal objective moral order. Instead, an epistemological skepticism prevails: moral truth would be subjective or conventional, the result of individual will or social agreements. This directly clashes with the Catholic tradition, which affirms the capacity of human reason to know certain metaphysical and moral truths, which bind us in conscience through natural law.

Second, its anthropology tends toward radical individualism. The human person appears primarily as an autonomous individual, whose social relationships are secondary or even artificial. This vision contrasts with the Catholic anthropology, deeply rooted in Aristotle, Cicero, Saint Thomas Aquinas, and Scholasticism: the human being is animal sociale et politicum by nature, oriented toward the common good and communion.

Third, metaphysical liberalism usually rejects or weakens the idea of an objective moral order knowable by reason. Good and evil are reduced to subjective preferences or calculations of utility. As a consequence, ethical relativism, subjectivism, and ultimately a state neutrality that, in practice, often becomes hostile toward the public presence of religion, gain ground. These presuppositions are hardly reconcilable with the Catholic faith, which upholds the existence of an objective moral order, inscribed in the heart of man, and the teleological orientation of the person toward truth, goodness, and God.

Political liberalism: areas of compatibility and fundamental differences

When liberalism is limited to being a political theory that proposes concrete institutional mechanisms to limit power, protect rights, and organize peaceful coexistence, the panorama changes notably. Many of its practical principles are compatible with the Catholic tradition. In fact, some of the institutional arrangements commonly attributed to liberalism can be found in the Natural Law tradition, particularly with that developed by the School of Salamanca during the 16th and 17th centuries.

However, even on this political-institutional level, there persist fundamental anthropological differences that are not minor and that have relevant consequences:

For Catholicism, man is a naturally sociable being. Political society is not a mere artifact, but something natural, such that social and political life has a perfective character. Politics has as its end helping man to realize his integral vocation, to attain virtue and the common good. Political authority is, therefore, a natural good willed by God for the integral human flourishing.

In contrast, in certain versions of liberalism (especially in Thomas Hobbes, and to a lesser extent in some readings of John Locke), society appears as a human artifact created to avoid greater evils: conflict, the war of all against all, or insecurity in the enjoyment of individual rights. Political authority is perceived more as a necessary lesser evil to guarantee peaceful coexistence and minimize coercion, than as a positive good oriented toward the integral perfection of man.

This divergence explains different positions on issues such as the scope of State action, education, public morality, subsidiarity, or the limits of State neutrality. While Catholicism can accept a limited State, it never conceives it as morally neutral instrument: power must be oriented toward justice and the true common good.

The irreplaceable contribution of the School of Salamanca

This is where the Salamancan tradition acquires exceptional value. Figures such as Francisco de Vitoria, Domingo de Soto, Diego de Covarrubias, Domingo Báñez, Luis de Molina, and Francisco Suárez offer a Catholic and realist foundation for many principles that would later become banners of political liberalism.

In his Relectio de potestate civili, Vitoria expressly stated that it belongs to the political community “to govern and administer itself and to direct all its powers to the common good,” and that it “is obliged not to entrust power except to one who exercises and uses it with justice; otherwise, it puts itself in danger.”

For his part, in his Relectio de Indis, considering that the American indigenous peoples were “true owners both publicly and privately,” he defended the dignity and natural rights of all peoples, rejecting natural slavery and laying the foundations of modern International Law.

Suárez, in works such as De Legibus ac Deo Legislatore (1612) and Defensio Fidei (1613), developed a sophisticated theory of political power: it resides originally in the community (potestas populi), is transmitted by consent (pactum translationis), and must be exercised for the common good. The ruler is an administrator, not the owner of power, so that if he becomes a tyrant, he loses his legitimacy and can be resisted.

For the School of Salamanca, it corresponds to Law and political authority to ensure the common good. In harmony with the classical tradition, the primary function of Law is the proper ordering of social life, so that the law should protect life and health, promote and safeguard socially valuable institutions such as marriage, as well as make possible a just economic order, guarantee access for all to certain public goods, and care for the development of a culture oriented toward the search for truth and civic friendship.

But the law, in addition to this orientation toward the common good, had to satisfy other criteria, which in a certain way are antecedents of what we today know as the principle of legality: it had to be promulgated by the authority to which the community had recognized that power, it had to be clear, coherent, stable, and provide legal certainty and security, binding not only the subjects but also princes and kings.

Of particular interest is Domingo de Soto’s view on the mutability of law, in which the central criterion is its orientation to the common good. This becomes the standard for prudential judgment in normative reform, for justice is impaired both when laws are allowed to petrify and when they are altered without restraint. Thus, on the one hand, he affirms: “Human laws, concerned with the uncertain and shifting flow of individual cases, cannot be laid down with precision except through the experience of time. For experience requires time. Consequently, whenever the passage of time offers something better, it is fitting to modify the laws.” Yet, at the same time, he cautions that “The law ought not to be changed for any reason that merely offers something better, but only when that improvement is so superior that it outweighs the damages and drawbacks which, by their very nature, accompany any change in the law.” (De Iustitia et iure).

In short, the authors of Salamancan Scholasticism defended the need for a government limited and subject to Law and Justice, natural rights (life, liberty, property), forms of economic organization based on personal initiative, free exchange, and the subjective theory of value (anticipating some elements of the Austrian School), or the distinction between temporal and spiritual power, pointing out clear limits to both. At the same time, they criticized certain excesses of power, such as concessions to monopolies, monetary manipulations, and excessive taxation.

In the Relectio the potestate civili, Francisco de Vitoria affirms “It is enough, then, that the greater part should agree upon something for it to be validly done in law”, and “Since the commonwealth has the right to govern itself, whatever the majority does is done by the whole body; hence it may adopt whatever form of government it wishes, even if it is not the best” (Relectio de Potestate Civili).

Regarding taxation, Covarrubias holds that civil authorities, to the extent that “they look after the common good and endeavor to administer justice—giving each person what is rightfully theirs and ensuring that no one’s rights are violated—” may legitimately impose tributes and taxes on the people. Nevertheless, “they must in all cases avoid unjust exactions, which tend to serve more to support luxury and a lavish lifestyle than to cover the costs of national defense and state administration or to reward labor”.

These ideas did not arise in a vacuum: anchored in the categories of Roman Law and the philosophy of Saint Thomas, they responded to the challenges of the discovery of America, the expansion of the Hispanic Monarchy, and the Protestant Reformation. Far from being a secular “protocapitalism,” they developed a Catholic Natural law theory oriented toward the common good and the dignity of the person created in the image of God.

Nuances, limits, and contemporary debates

It is important to avoid simplifications. The School of Salamanca was not “liberal” in the modern sense. Its authors were Catholic theologians who subordinated all social life to the supernatural order and eternal law. They defended a limited monarchy, not necessarily modern democracy, and never separated politics from Christian morality.

The debate on the compatibility between Catholicism and liberalism only advances with intellectual honesty when a clear distinction is made between a metaphysical liberalism (hardly reconcilable with the Catholic faith) and a political-institutional liberalism. The School of Salamanca constitutes a privileged historical reference: it demonstrates that it is possible to defend an order of limited government, natural rights, economic freedom, and democracy (understood correctly) from realist, Thomistic, and orthodox foundations, without the need to embrace radical individualism, moral skepticism, or modern artificial contractualism. In this sense, it provides conceptual tools suitable for building a Constitutional theory that, while it can integrate some of the institutional contributions attributed to liberalism, is freed from the risks that an tendentially unlimited individual autonomy poses to those same institutions.

For a Catholic, the question is not whether certain mechanisms or institutions of liberal origin can be assumed, but whether they are coherently integrated into an integral vision of man and society illuminated by natural reason and Revelation. That integration requires discernment, prudence, and doctrinal fidelity. The tradition of Spanish Scholasticism shows that it is not only possible, but that it was already brilliantly accomplished more than four centuries ago. Recovering this forgotten heritage can enrich both contemporary Catholic thought and the current political debate, offering a solid alternative to the extremisms of both collectivism and radical libertarian individualism.

Share

The New Digest is delighted to welcome this guest post from Thomas H. Bickel. He holds a B.A. in Political Theory from Brown University, recently served as Legal Advisor to a prominent U.S. Senator, and currently works for the U.S. Commission on Civil Rights. The views expressed here are his own and do not reflect those of any current or former employer. An avid tennis player, he can be reached at thomas_bickel@alumni.brown.edu for feedback.

“The object of opening the mind, as of opening the mouth, is to close it again on something solid.”

— G.K. Chesterton

I. Introduction – The Stakes of Disbelief

Let us think about this soberly. If Christianity is true, then ignoring God is not merely an error. It is the most catastrophic error a human being can make. Pascal’s Wager, while disturbing, remains logical: if God and the supernatural are real, then failure to believe in this reality is not safe—it could result in eternal damnation. Therefore, even a sliver of credible evidence for either of these things should arrest our attention. What we face, however, is far more than a sliver.

From the visions of the Hebrew prophets to the oracles of Greece, medieval mystics to the Aztecs, and all the way to modern-day witnesses, almost every culture in history has operated on the assumption that the supernatural is not only real, but also directly involved in human affairs.

Yet skeptics continue to demand from supernatural claims what they demand from nothing else: complete understanding. It is not enough that an event defies natural explanation, is attested to by credible observers, and yields lasting effects. They press ancillary questions—Why here? Why now? Why in this form? How exactly does x work? How can x be replicated?—and when such questions cannot be answered with precision, they treat these unknowns as grounds for disbelief.

But this is a category error. Supernatural phenomena, by their very definition, go beyond nature—not merely by seeming to violate physical laws, but by revealing a deeper order behind them. Accordingly, they involve mystery, and they necessarily resist complete understanding because they participate in a higher order that transcends material causation and the visible world. To disbelieve an alleged event on the basis that it lies beyond human understanding, then, is to demand that the supernatural cease being what it is. Moreover, such epistemic rigor tends to be applied selectively. We trust modern medications without understanding their mechanisms or long-term side effects, believe in the historicity of events that we didn’t witness ourselves, and rely on scientific models that, by definition, are provisional and acknowledge the possibility of error. In nearly every domain of life, we operate not on absolute certainty, but on reasonable confidence grounded in the weight of accumulated evidence. What matters is not complete understanding of phenomena then, but our willingness to follow evidence wherever it leads.

II. When Testimony Converges Toward Certainty

In American law, two standards of proof govern how we assess contested claims. The first, preponderance of the evidence, asks whether something is more likely true than not—a modest 51% threshold used in civil cases, where the consequences of error are less severe. The second standard, beyond a reasonable doubt, is used in criminal trials, where the cost of the jury being wrong could put an innocent man to death. This latter threshold does not demand certainty, but it sets the bar much higher: the body of evidence to convict must be found to be so compelling that doubt is no longer reasonable. These standards are not abstractions. They reflect how we live—how we decide, judge, and act when complete understanding is unattainable. We are not paralyzed by mystery; with some epistemic humility, we move forward when the evidence converges on one explanation and renders rival explanations so unlikely as to be unreasonable.

Many claims of supernatural phenomena, if thoroughly investigated, involve evidence that may satisfy the lower threshold. But the three Marian apparition cases that follow do something more rare—their scale warrants asking whether the evidence is compelling beyond a reasonable doubt.

Given the extraordinary nature of these apparitions—and how well-documented and well-corroborated each one is—one might expect them to provoke intense public scrutiny and sustained interest. Yet in our modern culture that dissects headlines, parses data, and elevates even the most trivial controversies to matters of national importance, Marian apparitions remain curiously overlooked. As astonishing as they are, and as consequential as their implications may be (i.e., with some considering these apparitions to point towards the truth of Christianity or Catholicism), these historical events are seldom granted serious consideration beyond insular religious circles.

So let us recall the reported facts of each of these cases, then—and allow reason to guide us to a proper conclusion.

III. LOURDES:[1]

In 1858, 14-year-old Bernadette Soubirous—a poor, sickly, and illiterate peasant girl from Lourdes, France—began reporting visions of a mysterious “Lady” in a grotto as she prayed her rosary there. The apparitions triggered public uproar, drew the attention of government officials, and led to one of the most thoroughly documented and enduring unexplained phenomena in modern history. Despite being interrogated by police, threatened with imprisonment, and pressured by both clergy and skeptics, Bernadette maintained her account. She described the Lady in vivid detail—clothed in white with a blue sash, and yellow roses at her feet—and during the apparitions, fell into ecstasies so profound that she was insensible to external stimuli. Eyewitnesses, including physicians and state officials, recorded how she remained calm and unflinching as a burning candle scorched her hand. Hundreds of villagers attested to these events, many in writing. During one apparition, the Lady identified herself with the words, “I am the Immaculate Conception”—a theological term Bernadette did not understand, and could not have invented, having never heard it before. In another vision, at the Lady’s direction, Bernadette dug into a particular spot in the ground and uncovered a hidden spring that instantly began flowing. Since then, more than 7,000 miraculous cures have been reported in connection with this spring water, leading to the establishment of the Lourdes Medical Bureau, a permanent medical commission charged with evaluating such claims. The bureau is composed entirely of physicians—many of whom are non-Catholics or skeptics—whose purpose is to play ‘devil’s advocate,’ investigate, and rule out any natural explanation before a case can proceed further. Of the thousands reviewed, 70 claims have withstood this rigorous process and have been formally recognized by the Catholic Church as miracles. Bernadette sought neither fame nor reward; she entered a convent, lived in quiet obscurity, and died at age 35. Her body, exhumed multiple times, was found to be incorrupt, and remains so today—more than 140 years after her death.

IV. FATIMA:[2]

In 1917, three shepherd children began experiencing apparitions of a luminous Lady in the fields of Fátima, Portugal, amid a period of political unrest and militant secularism. The children—ages 7, 9, and 10 at the time—were from poor, rural families and lacked formal education, yet they provided consistent, detailed accounts of the apparitions to both their families and fellow villagers. Word spread. A local government official detained them under the pretext of investigating the public disturbance the children’s claims had caused. He imprisoned them with adult criminals, threatened to boil them alive, and falsely told each that the others had already been killed—attempting to force them to reveal the Lady’s secrets or recant their testimony. Nevertheless, the children continued to obey the Lady and to return to Her. Six apparitions occurred between May and October 1917, with the August apparition delayed because of the children’s imprisonment. During these spectacles, witnesses observed the children slip into deep trances while reciting the rosary, unresponsive to what was happening around them. The crowds, with some reporting physical healings in the presence of the children, continued to build. By autumn, anticipation had reached a fever pitch. Word of a “promised sign” had spread across Portugal, drawing the devout, the curious, and the hostile alike. The Lady’s messages—urgent calls to prayer and penance and prophesying world events—culminated in a promise that on October 13th, there would be a public miracle unveiled for all to witness. That day, it is estimated that over 70 thousand gathered in a muddy field under torrential rain—including skeptics, scientists, and journalists from out of town. What transpired came to be known as the “Miracle of the Sun”: the sun broke through cloud cover, spun rapidly, changed colors, and plunged toward the earth before returning to its place, while the soaked ground and crowd dried instantaneously. The phenomenon was reported in detail by multiple Portuguese newspapers—including O Século, the nation’s leading secular newspaper—and was noted in other international press outlets. Several black-and-white photographs also depict the extraordinary crowd assembled that day. The prophecies shared with the children—fortelling the rise of Communist Russia, the outbreak of World War II, and future persecution of the Church—were each fulfilled with pinpoint accuracy. Sister Lúcia dos Santos, the oldest child, lived to age 97 and testified to the veracity of her encounter with the Blessed Virgin Mary until her death on February 13, 2005.

V. ZEITOUN:[3]

In 1968, a series of an estimated 94 apparitions began atop the Coptic Orthodox Church of Saint Mary in Zeitoun, a suburb of Cairo, Egypt, for a period of roughly three years. Interestingly, this apparition was allegedly foretold twice: the church’s founder reportedly built it after a dream-vision in which Mary promised She would appear there and work a miracle, and, in 1962, a Lithuanian visionary at Janonys, near Skiemonys, recorded Mary saying She would “[at some later time] appear in Egypt with angels.” Whatever one makes of these precursor claims, the Zeitoun apparitions themselves were witnessed by roughly a million people, including Muslims, Christians, atheists, government officials, doctors, and skeptics—many of whom documented the events as they occurred intermittently and unpredictably. The apparition was not private to any one person or group of people—it was public and visible to the masses, with reports describing a luminous, full-bodied figure of a woman believed to be the Blessed Virgin Mary, hovering above the church, surrounded by white doves, often for hours at a time. She was sometimes seen bowing in prayer, slowly pacing atop the church roof, extending her hands in silent benediction, and even kneeling before the cross on the roof. The phenomena were photographed, filmed, and reported in both Egyptian and international media, including The New York Times, making it one of the most well-documented unexplained events of the 20th century. Eyewitnesses and local physicians also reported that some were physically healed after praying during the apparitions. In response to such widespread commotion and intrigue, the Egyptian government—which was then led by President Gamal Abdel Nasser, a Muslim—commissioned an investigation. In an effort to debunk the alleged sightings as artificial light projections, authorities cut off electricity to the area around the church—including neighboring districts—during apparition times. To their bewilderment, the luminous figure continued to appear, undeterred by the blackout. Police investigators were unable to find any device within a radius of fifteen miles capable of projecting the image. This is not to mention that a free-floating, three-dimensional, viewable-from-all-angles ‘hologram’ of such scale was beyond any projection technology known or available in the 1960s, and remains beyond what we know can be produced today. With no natural explanation to account for what was witnessed by hundreds of thousands of people, the Egyptian government ultimately accepted the authenticity of the apparitions.

VI. Conclusion – The Irrationality of Disbelief

The Catholic Church, in Her wisdom, subjects reported miraculous phenomena to the utmost scrutiny. Lourdes was declared “worthy of belief” in 1862, only after four years of rigorous and methodical investigation; likewise, the Fátima apparitions received the same declaration in 1930 following thirteen years of deliberation. Although Pope Paul VI sent two Vatican envoys to observe the Zeitoun events firsthand, because the apparitions occurred atop a Coptic Orthodox church outside Rome’s jurisdiction, the Holy See never issued a formal judgment on them.

Even still, the Church does not require any of these alleged apparitions to be believed in as a matter of doctrine. Rather, the Church’s declarations serve as invitations: to consider the evidence, and to believe if one finds the testimony persuasive and edifying.

So let us consider them for ourselves, then. After all, there are only four positions one can hold.

1. One may accept the apparitions as authentic.

2. One may reject their authenticity, on the grounds that the phenomena originate from occult practices or “demonic deception”—an apparent “angel of light” attempting to misdirect souls. While this concern is well-founded, the problem is that the observable “fruits” of these apparitions seem to cut against this hypothesis: it is difficult to reconcile why spiritual entities “not of God” would yield prayer, repentance, conversion, hope, healing, and peace when these outcomes are what demonic activity is thought to oppose.

3. Alternatively, one may reject their authenticity on the ground that there is nothing supernatural about these phenomena. It is worth considering what such explanations would entail, however. To maintain this view, one must speculate that a frail, illiterate fourteen-year-old in nineteenth-century France, three shepherd children in rural twentieth-century Portugal, and vast crowds of Muslims and Christians in 1960s Egypt—all separated by culture, language, and time—somehow conspired or fell subject to the same delusion of a “most beautiful woman from Heaven,” accompanied by almost-identical gestures and luminous phenomena; that they maintained their accounts of this “figment of imagination” in the face of ridicule, interrogation, threats of insanity, imprisonment, and death, maintaining composure under questioning that even unsettled their interrogators; that their trances—studied and observed by physicians—were something other than what they plainly appeared to be; that such “private hallucinations” afflicted crowds in perfect synchrony, with many witnesses seeing the same thing at the same time in the same detail; that the events in question happened precisely when foretold as a matter of sheer coincidence; and that, despite being “inauthentic,” these bizarre spectacles nevertheless bore enduring fruits—conversions and inexplicable physical healings that continue to this day.

4. Others will choose to remain perpetually undecided, neither believing nor rejecting. Yet to persist in this position in the face of well-corroborated and well-documented evidence is not, as is too often assumed, a demonstration of epistemic humility. As the evidence mounts, refusal to pick a side increasingly becomes an act of willful rejection.

And so the question remains: what is more plausible—that these unexplained events are all part of a vast, perfectly-orchestrated, man-designed conspiracy? That all these events are merely coincidental despite how fantastically and inordinately improbable that is? Or that the Blessed Virgin Mary, unbound by any natural limitations, simply revealed Herself on these occasions?

There is nothing virtuous about remaining open-minded in the face of overwhelming evidence. It is time, as Chesterton implores us, to close our minds on something solid.

[1]

Source: https://www.thriftbooks.com/w/saint-bernadette-soubrious-1844-1879_francis-1877-1967-trochu/38425562/item/86807412/?utm_source=google&utm_medium=cpc&utm_campaign=low_vol_backlist_standard_shopping_customer_acquisition_16919871551&utm_adgroup=&utm_term=&utm_content=593241238718&gad_source=1&gad_campaignid=16919871551&gbraid=0AAAAADwY45hDg_1e0sw_a5Q1UfZMDx53O&gclid=Cj0KCQjwjL3HBhCgARIsAPUg7a4MbRAJCdRe8NzSIEKe8yN5HJpt_d3UQsksBIKHylWyX4AKzjwrOfkaAspdEALw_wcB#idiq=86807412&edition=65725591

[2]

Source: https://a.co/d/i4OQLtb

[3]

Source: The Marian Apparitions at Zeitoun: An Evidential Inquiry by Travis Dumsday

Share

Subscribe now

We are misdescribing constitutional conflict in Western Europe. What presents itself as disagreement over law, over the rule of law, democratic mandate, institutional restraint, is better understood as a conflict over the conditions that make those things intelligible in the first place. Appeals to constitutional principle increasingly fail to persuade, not because they are weak arguments, but because they presuppose a shared world that no longer exists.

To understand this failure, we need a different concept: generational political theologies. By this I mean the historically situated structures through which authority is justified, crisis interpreted, and political order rendered meaningful. They are “theological” not in a confessional sense but in a functional one: they supply ultimate criteria of legitimacy that are not themselves open to procedural adjudication. They answer foundational questions, what constitutes authority, what forms of crisis justify exceptional action, what kind of order is worth preserving, questions that precede legal reasoning and cannot be resolved by appealing to the very procedures whose authority they simultaneously contest.

In postwar Western Europe, these structures are increasingly shaped not by a shared historical consciousness but by generational experience. Constitutional disagreement has accordingly ceased to be a disagreement within a common framework. It is a contest between rival interpretive sovereignties.

What a Constitution Is

Constitutional theory tends to oscillate between two positions. The first treats the constitution as a formal framework: a system of rules allocating power, protecting rights, and structuring decision-making. The second treats it as inseparable from politics, a product of ongoing contestation rather than a constraint upon it. Both positions assume that the meaning of constitutional order is stable enough to sustain disagreement at the level of rules or institutions. Neither can account for the condition in which that meaning itself becomes contested.

A constitution, properly understood, is a symbolic order: the medium through which a political community represents its authority to itself. It connects past experience, present structure, and future expectation into a coherent framework of meaning. It renders power intelligible and justifies legal norms through historical memory, collective identity, and obligation across time. Constitutional disagreement, thus, is disagreement over this framework, over what kind of order the constitution expresses, why it deserves obedience, and whether it still speaks to the historical experience of those it governs.

A constitution is therefore, at its core, a temporal structure. It holds together what Koselleck called the space of experience and the horizon of expectation — the community’s inherited past and its anticipated future — in a present that can be inhabited as meaningful. Constitutional legitimacy depends on this temporal continuity being felt, not merely asserted. When it is felt, citizens experience themselves as participants in an ongoing story, bound by obligations that precede them and extending toward a future they share. When it is not, the constitution persists as form while its capacity to command genuine allegiance quietly drains away. The crisis of constitutional meaning in Western Europe is, at its root, a crisis of this kind: not a crisis of rules, but of time.

The postwar constitutional settlement in Western Europe depended on just such a shared horizon. It was anchored in the memory of civilizational rupture, fascism, war, genocide, which functioned as a negative foundation for political order. Constitutionalism was experienced as restraint: a structure designed to prevent the return of existential politics. Rights and rule of law were not abstractions but civilizational achievements.

That horizon is now weakening. In highly institutionalised contexts, this produces a revealing symptom: political disagreement is displaced into technocratic management, reframed as optimisation rather than judgment. What presents itself as consensus often conceals the absence of a shared framework within which genuine disagreement could occur. Constitutionalism persists, but as form without substance, procedure without a common world.

Liberalism as Anticulture

To understand how this fragmentation arises, one must confront a deeper transformation in Western political life. Patrick Deneen’s central claim, that liberalism succeeds precisely by dissolving the cultural conditions that sustain it, provides the explanatory framework. Culture is understood as the medium through which human beings experience continuity across time: inherited practices, shared memory, and intergenerational obligation connecting past, present, and future. Constitutional orders depend on such continuity, deriving their legitimacy from embedding within a narrative that renders their principles meaningful.

Postwar Western Europe possessed such a narrative. Constitutionalism was understood as a response to catastrophe: a moral and political settlement grounded in the memory of totalitarian collapse. Liberalism undermines this continuity by replacing embedded forms of life with abstract rights and market relations, privileging autonomy over inheritance, present choice over historical obligation. The protoliberal Hobbes had already identified the anthropological baseline: in the absence of a shared teleological horizon, there is “no common rule of good and evil to be taken from the nature of the objects themselves.” What Hobbes presented as an anthropological condition becomes, under liberal anticulture, a civilizational one.

What remains is a system that is procedurally durable yet symbolically thin. Law continues to function, but it no longer carries a unified account of why it ought to be obeyed. The constitution ceases to mediate a shared historical experience and becomes available for reinterpretation by actors situated within divergent temporal frameworks. It is precisely within this vacuum that generational experience becomes politically decisive. When a shared constitutional memory weakens, cohorts increasingly interpret authority, emergency, and legitimacy through the crises that marked their own formation.

Four Generational Horizons

These categories are analytical ideal-types; they identify dominant symbolic horizons rather than uniform political orientations. Individual variation within each generation is substantial, but what they aim to capture is the modal structure of political imagination as shaped by formative historical experience.

Boomers: Chastened Constitutionalism. For those shaped by the memory of totalitarian collapse and democratic reconstruction, constitutional order appears as a moral achievement grounded in restraint. The rule of law functions as a bulwark against the return of existential politics. Authority is legitimate insofar as it is constrained; proceduralism and moderation are the hard-won lessons of catastrophe. From this horizon, the erosion of institutional norms appears as a failure of political will, recoverable through recommitment to established procedures.

Generation X: The Politics of Containment. This cohort inherits the postwar framework but experiences it through the lens of geopolitical fragility. Constitutional institutions are valued less as moral correctives than as stabilising mechanisms within a dangerous world. The political-theological form is one of containment: legitimacy lies in preventing escalation rather than realising any substantive vision of the good. Where the Boomer horizon is shaped by memory of collapse, Generation X is shaped by fear of rupture, and by a corresponding suspicion of political ambition that presents itself as transformative.

Millennials: Hollow Constitutionalism. Socialised in the last period of apparent normality, the 1990s, and then disrupted by financial crisis and declining institutional trust, this cohort experiences constitutionalism as formally intact but substantively empty. Arendt’s account of the disappearance of the public realm is precise here: when politics becomes administration, citizens no longer experience themselves as actors within a shared world but as objects of governance. What she describes as “rule by nobody,” authority without an author, captures this condition of depoliticised legitimacy. The deficit, for this generation, is not fear of collapse but the suspicion that the order no longer stands for anything worth preserving. It is then no surprise that this is the first generation gravitating toward more radical political preferences. Peter Thiel in his famous email identified the structural cause: the generational compact has been badly broken, the Boomer generation has maintained an iron grip on institutions long past the point of legitimate tenure, and when the handover finally comes it will be more sudden and dramatic than anyone expects precisely because it has been so long delayed. When one has no stake in the system, Thiel observes, one may well turn against it. The Millennial drift toward radicalism is not just ingratitude but a rational response to dispossession and unworldliness.

Generation Z: Permanent Emergency. For the youngest, and my own, cohort, the formative horizon is defined by overlapping crises, climate, migration, pandemic, geopolitical rupture, in which the distinction between rule and exception has blurred. Having grown up in a world with no recognisable normal, the 1990s are understood by this cohort primarily as cultural reference points absorbed from older generations, most concretely the apparently mythological era in which one could carry more than 100ml of liquid onto an aircraft without arriving at the airport two hours early to prove it. More analytically, following Agamben, modern governance increasingly reduces political life to the management of bare life, destabilising the traditional unity of state, nation, and territory. Authority is evaluated primarily in terms of its capacity to respond to crisis, even at the cost of normative stability. What earlier generations experienced as exception, this cohort experiences as the normal environment of politics.

But the deeper consequence of permanent exception is temporal. Schmitt’s concept of the exception presupposed a distinction between normal constitutional time and the moment of decision that suspends it. The exception was an interruption; its purpose was, at least notionally, the restoration of order (Schmitt’s commissarial dictatorship). What Agamben identified, and what the Gen Z horizon makes viscerally legible, is that the exception has ceased to be an interruption and become a standing condition. Constitutional time — the fragile continuity of past, present, and future within which judgment and deliberation can occur — has not been suspended but eroded from within. The result is a generation that evaluates authority not by its fidelity to an inherited order but by its capacity to manage the crisis of the present moment. When the temporal horizon collapses into the perpetual now of emergency, constitutional memory becomes irrelevant.

Fragmentation Without Resolution

These frameworks explain why constitutional arguments increasingly fail to persuade across audiences. Appeals to the rule of law resonate within the Boomer horizon, where restraint is the highest political virtue. Appeals to democratic mandate carry weight where legitimacy is understood in majoritarian terms. Appeals to emergency powers gain traction where crisis is perceived as permanent. Each argument presupposes a framework of legitimacy that is no longer universally shared.

The consequence is fragmentation at the level of meaning. Constitutional politics is no longer best understood as disagreement within a shared normative universe but as a competition between rival frameworks of ultimate justification: distinct loci of interpretive authority within a formally unified constitutional order. This has a crucial institutional implication. The erosion of a shared constitutional horizon entails the erosion of adjudicative authority. When no common framework of legitimacy exists, no institution, court, legislature, or executive, can resolve disagreement in a manner recognised as authoritative across the political community. Constitutional systems may persist formally while their capacity to sustain democratic legitimacy quietly diminishes.

At stake, ultimately, is the disappearance of a shared orientation toward the common good. As Aristotle argues, political community presupposes a shared understanding of justice directed toward others as a common end. Where that horizon dissolves, constitutional disagreement can no longer be resolved through appeal to shared standards, because those standards are themselves contested at the level of generational experience rather than merely at the level of legal interpretation. Constitutional politics becomes a contest among rival mythic horizons rather than deliberation within a shared world.

After the Anticulture

If this diagnosis is correct, the challenge in reconstituting the common good is first temporal before it is institutional or cultural. The fragmentation described is, beyond a disagreement about values, a collapse of the shared time within which values could be deliberated and transmitted. Each generational horizon inhabits a different relationship to constitutional past and future: the Boomer preserves a memory others no longer share; the Millennial inherits an empty form; the Gen Z cohort has abandoned the temporal horizon altogether, substituting crisis-response for deliberation.

The temptation is restoration; to reconstitute the postwar horizon by recovering its memory, reinvesting its symbols, and recommitting to its procedures. But the tranquillitas ordinis that held the postwar settlement together was never a positive achievement but an act of holding on, restraining collapse long enough for judgment to remain possible. That holding is now failing, and no recommitment to procedures will regenerate what sustained it.

This failure has a political consequence: the generational fragmentation described in this essay produces a legitimacy vacuum, and vacuums get filled. Schmitt’s distinction between commissarial and sovereign dictatorship is illuminating here, where, as the commissarial dictatorship suspends the existing order temporarily — as Lincoln suspended habeas corpus during the Civil War, a deviation framed as restorative, directed toward preserving a constitutional world that remained substantively alive — the sovereign dictatorship does something categorically different: it does not restore but refounds, replacing one legal order with another. The danger of the permanent emergency horizon that Gen Z already inhabits is not merely that it normalises exception. It is that the same formal gesture — emergency power framed as temporary and restorative — becomes sovereign in effect when there is no longer a shared constitutional world for it to restore toward. The commissarial can only hold if there is something to uphold.

What the collapse of constitutional time therefore requires is not restoration but reconstitution, and reconstitution begins at the level of institutions; at the level of formation. The postwar constitutional settlement already presupposed a moral vocabulary it had inherited but could no longer regenerate: the Tradition from which liberalism borrowed its account of human dignity, natural right, and the common good, and which it then systematically dismantled. To reconstitute shared frameworks of meaning now means going behind the liberal settlement to the sources it drew on, reading those texts as interlocutors with something valuable to teach rather than specimens of difference to be studied. This is what postmodern means directed toward premodern ends looks like in practice: institutions that must now consciously choose to hand on what was once unconsciously inherited.

That such institutions are beginning to appear is itself significant. The Huygens Master’s Programme in Liberal Arts — launching in Leiden in — is one example of the institutional form this requires: small, residential, text-centred, consciously positioned within a lineage rather than against one. That Europe’s first Great Books master’s programme had to be invented from scratch in is not an encouraging sign; it confirms the diagnosis. But that it exists at all suggests the retrieval is beginning to be instantiated. What makes this form adequate to the transmission problem is scale: formation requires proximity close enough that the text can find you as it was intended, contributing to your formation in libertas, not merely that you can extract from it in your licentia. A small seminar, an argument that begins over a text and finishes hours later, are conditions for the kind of handing-on the diagnosis requires. To treat them as optional is the gesture of Saul at Endor: reaching for the Tradition through sheer will, after the living connection has already been severed, and expecting the dead to speak on demand. What is required instead is formation that precedes the need: apprenticeship within a lineage while it can still be inhabited, not conjured.

Two paths then present themselves. The Benedictine option: withdrawal into enclaves that preserve the tradition while the broader culture continues its dissolution. Or the long march: the conscious reoccupation of the universities, courts, and legislative chambers that the anticulture has hollowed out, by people formed within a lineage rather than against one. The disembeddedness this essay has described is three generations deep, recent enough on a civilisational scale to be reversible. The Tradition was not destroyed but abandoned, and what was abandoned can be retrieved. Until that work is further along, we remain in the interval: hoping the emergency gestures of our politics remain commissarial, aware that without a tradition robust enough to constitute an order worth restoring, there is nothing to prevent them from becoming sovereign. That is the political-theological wager of the present moment. It will be resolved, or not, by whether the coming generations find their way back to the Source.

Share

Pope Leo XIV’s Magnifica Humanitas is, on its face, an encyclical “on safeguarding the human person in the time of artificial intelligence” (title). Its deeper significance lies in treating AI not simply as a regulatory challenge, nor even as a new field of applied ethics, but as a transformation in the structure of power itself.

The encyclical begins with a stark theological image (para. 7-10). Humanity stands between Babel and Jerusalem. Babel is the city of self-sufficient power: technically impressive, unified in method, ambitious in scale, yet ultimately incapable of communion. Jerusalem is the city rebuilt through shared responsibility, ordered plurality, memory, prayer, and a common task under God.

The digital age, in Leo XIV’s reading, places this same choice before us again. The encyclical’s claim is therefore not merely that AI must be regulated, but that technological power must be judged, limited, and directed according to an adequate account of the human person and the common good. Its constitutional significance lies in foregrounding how AI reveals forms of power that are increasingly shaping social life while escaping the categories through which modern constitutionalism has traditionally sought to discipline power.

1. Human Dignity and the Digital Revolution

At the heart of Magnifica Humanitas lies a claim that is at once theological, anthropological, and constitutional: human dignity is the red line against which AI and the broader digital order must be judged. Leo XIV grounds it in the traditional Christian understanding of the persona humana as created in the image of God. The human being is therefore not reducible to data or optimisable capacity. No machine, however sophisticated, can replace the grandeur of human intelligence as such. AI can only simulate those features (para. 99).

Ordinarily, technology has been described as an instrument. The encyclical stresses that current technologies embody decisions about what counts, what is ignored, what is measured, what is optimised, what is rewarded, and what is made invisible. They reflect the assumptions of those who design, finance, train, regulate, deploy, and profit from them (para. 9; 100). Leo XIV therefore rejects a naive instrumentalism. AI cannot be evaluated exclusively on the intentions of the user. Some anthropology of the person and society is inherent to the design of a system (para. 111).

This is why the encyclical is best read within the natural law tradition, even when its language is pastoral rather than scholastic. It assumes that the human person has a given nature, an intrinsic worth, and a moral vocation that precede complex tech. Across the document, the Pope puts the common good–in its classical sense–as a key category to redirect the new power, that is already here.

2. AI as Constitutional Problem: The New Power and Technocracy

Since the Second World War, human dignity has occupied a central place in constitutional language. Yet, as is well known, its use in rights adjudication and political discourse has increasingly been detached from any grounding in objective moral order. In many contexts, dignity has consequently been transformed from a principle that affirms the intrinsic worth of the human person into a flexible justificatory device for balancing incommensurable goods. Rather than serving as a substantive limit on power, it is often invoked to authorise the sacrifice of some rights in the name of another right presented as overriding all competing claims.

Leo XIV pushes the dignity principle further. Human dignity its portrayed as a meta-constitutional standard for socio-technical systems. This is a serious challenge to mainstream constitutionalism, to the extent it has assumed that the principal threat to rights came from the state. The encyclical observes that the digital revolution has shifted much of the effective power of social ordering toward private and transnational actors, that is, the opaque companies or groups who control platforms, infrastructure, data, visibility, access, computational power, and the conditions of participation in digital life (para. 5; 71; 95).

This is why AI is a constitutional problem in the strongest sense. It concerns the transformation of opaque transnational-private power into public authority. The questions that modern constitutionalism once sought to stabilise through written constitutions–who governs, by what right, through which procedures, under what limits, and for what ends–are increasingly being displaced into socio-technical systems that operate beyond the traditional constitutional frame. AI exposes the current inadequacy of a constitutional imagination built around state action alone. Many of these new issues lie outside the ordinary categories of legislation, administration, adjudication, and coercion.

The Pope’s most pointed criticisms are aimed at a technocratic paradigm of social order, portrayed as an inhumane system of dependency (para. 92; 95; 172). Leo XIV warns that AI intensifies the danger, since it gives technocracy a new tool for automating decision-making. The consequence is that political responsibility can be dispersed and bias can be hidden behind statistical complexity (para. 103; 105). Political choices can be presented as technical necessities. Those excluded by algorithmic systems may find no identifiable person to confront, no reasons to contest, and no institution capable of offering redress.

The encyclical therefore reframes the constitutional question. The issue is not only whether AI systems are efficient or accurate. The issue is what they do to human agency, authorship, responsibility, individuality, accountability, and public reason (para. 100). Who is the one acting when an AI system makes or shapes a decision? Who is responsible when harm occurs? Can a person meaningfully appeal a decision in such an opaque system? Can democratic government survive if the conditions of public communication are increasingly shaped by private systems optimised for attention, manipulation, or profit? (para. 103-106).

Facing this landscape, the classical state-centred model of fundamental rights becomes fragile when the real infrastructure of power is held by algorithmic systems, data markets, and global technological actors. A constitution that disciplines only the state may leave untouched the systems that increasingly govern everyday life. Magnifica Humanitas brings foregrounds this problem and insists that the response must be political, legal, moral, and spiritual, all at once.

3. Teleology and the Common Good

Much of contemporary debate about AI proceeds within a reactive grammar. Liberal approaches tend to ask whether individual rights have been respected (privacy, autonomy, non-discrimination, freedom of expression, due process, etc.). Neo-Marxian approaches tend to ask who owns the infrastructure, who controls the means of digital production, who benefits from extraction, and who is exploited. These are serious questions, but Leo XIV asks something prior and more comprehensive: “Where are we going? Toward what goal do we wish to orient ourselves?” (Para. 6) “What are we building?” (Para. 90) Toward what common end should technological power be directed? And, most dramatically, who is the public authority now?

This question marks the encyclical’s departure from the dominant vocabulary of modern constitutional thought. Liberal constitutionalism often hesitates before substantive accounts of the good. Its central concern is to secure procedures and zones of autonomy. When common purposes appear, they are frequently translated into a managerial category. The encyclical speaks in a different register. For Leo XIV, the common good is the condition in which freedom becomes genuinely human. A person flourishes through relationships, duties, institutions, communities, truth, work, worship, care, and responsibility (para. 60; 148). A society flourishes when its structures make such forms of life possible. Technology must therefore be judged by the kind of human and social order it helps to create.

Speaking on democracy, the Pope emphasises that truth is a crucial element of the common good: “democracy does not consist of rules and procedures alone, but above all of a solid concordance with the facts and a genuine commitment to the good of individuals and society as a whole” (para. 134).

4. Conclusion: The Constitution of the Digital Age

Magnifica Humanitas should be read as a major intervention in Catholic social thought. It should also be read as a contribution to constitutional theory.

Its central insight is that AI changes the structure of power. It alters the relation between public and private authority, between persons and systems, between truth and communication, between work and production, between freedom and dependency, between law and technological infrastructure. The encyclical therefore invites a constitutional response wider than courts, rights, and regulation.

That response begins with anthropology. If the human person is only a bundle of preferences and data points, then AI will be judged by efficiency, prediction, and control. If the human person possesses an inviolable dignity that is created for communion, and is ordered toward truth and the good, then AI must be placed within a moral and constitutional architecture adequate to the realisation of that dignity. The encyclical’s deepest question is therefore architectural: what are we building?

Babel remains possible: a digital order of transnational domination in a homogenised language with opaque systems that instrumentalises persons. Jerusalem also remains possible: a shared construction in which technology serves dignity, authority is disciplined by justice, plurality becomes communion, and the common good, illuminated by Christian social thought, gives direction to social life. The future of AI will depend on which city we choose to build.

Share

Subscribe now

(1) Congress.AI: A Debate

TND editor Prof. Jeremy Christiansen provoked a multi-faceted debate by posing the question whether legislation produced by AI would count as “law” - in particular, whether legislation so produced would count as an “ordinance of reason.” Fellow TND editor Rafael de Arizaga wrote a response, as did a set of recent Harvard Law graduates and a computer scientist — Messrs. Kimo Gandall, Jack Kieffaber and Kenny McLaren. Prof. Christiansen then wrote a reply. We collect all these together in the order described.

(2) Judge.AI

On the judicial side, Mr. Keiffaber has argued in our pages — explicating a concurrence by Judge Kevin Newsom of the Eleventh Circuit — that a textualist must necessarily approve of “Judge.AI,” the attempt to substitute artificial intelligence in place of human judgment in the interpretation and application of statutes. If one finds that conclusion unacceptable, Keiffaber argues, then one must necessarily reject textualism.

(3) Corpus Linguistics and AI

Finally, Mr. Matias Mayesh, a recent Harvard Law graduate, and Mr. Keiffaber argued in our pages that so-called “corpus linguistics” is just an incomplete step towards Judge.AI — and hence towards the reductio ad absurdum that afflicts the latter.

Share

My first memory of Prof. G. Robert Blakey, who passed away May 1 at the age of 90, is one to which many graduates of Notre Dame Law School and Cornell Law School can relate. I was assigned to his criminal law class in my first semester at Notre Dame, and dutifully seated myself in a lecture hall in the “old” law school building just before 8 AM on a Monday morning in August. At the podium stood an unassuming elderly gentleman with a mild North Carolina drawl, dressed in a coat and tie that could best be described as “shabby prep.” With no preamble, he cold-called one of my classmates and launched into a free-wheeling Socratic dialogue about Regina v. Dudley & Stephens, an 1884 decision from the Queen’s Bench that limits the defense of necessity in homicide cases to self-defense.

I had the good fortune and privilege to be one of Prof. Blakey’s research assistants from 2008 to 2010, and I also co-authored a paper with him published in 2014 about securities fraud. He was an idiosyncratic figure, driven by his convictions and his Catholic faith, who did not fit in the modern paradigm of “liberals” and “conservatives.” He could be hilarious but also scathing, cheeky but also sarcastic (particularly when talking about the work of the federal judiciary). And sometimes, it was just plain difficult to work with him. But when he let his guard down, I also found a man who was gentle, self-deprecating, and kind. He was a widower when I met him; his wife Eileen, with whom he had eight children and eighteen grandchildren, passed away from cancer in 2002. The sadness of a loss like that never fades. But even in the midst of that suffering, he took great joy from teaching and mentoring law students.

In the wake of his passing, Prof. Blakey is rightly being commemorated as a public servant, a scholar, and a teacher. Among his many accomplishments, he prosecuted organized crime as a trial attorney in Robert F. Kennedy’s Department of Justice; investigated the assassinations of President Kennedy and the Rev. Dr. Martin Luther King, Jr.; and drafted, as legislative counsel to Sen. John McClellan, the federal Racketeering Influenced and Corrupt Organizations (RICO) Act of 1970.

Less well known is Prof. Blakey’s passion for jurisprudence. He was an honors undergraduate in philosophy at Notre Dame, and he regularly taught the required jurisprudence class at Notre Dame Law School, covering everything from the Stoics to critical gender theory. Here, I want to briefly sketch some aspects of his own jurisprudence, as I believe his conception of legal decision making is highly relevant to contemporary debates about legal theory.

Prof. Blakey was the first scholar I encountered who was fluent in the legal traditions that predated and, in many important ways, influenced America’s founding generation. He saw Greek and Roman law as important reference points for his work as a scholar of criminal law. His writings on RICO often contained lengthy historical diversions tracing features of the statute, like treble damages, to precedents in ancient sources such as the Institutes or the Digest. It mattered greatly to him that RICO reflected the application of classical wisdom to a new type of problem. (The footnotes containing these diversions would often span several pages of law review text. Their length bordered on the comical at times. But bear in mind that Prof. Blakey was a product of the pre-Internet days, in which it was not so easy to informally publish short pieces on relevant or interesting topics that may not have merited a full law review article. He would have been a highly impactful Substacker had his career begun forty years later.)

His own jurisprudence was heavily informed by the great Christian interpreters of the classical legal tradition, particularly St. Thomas. He situated the work of lawyers and judges within the Thomistic concept of determinatio, or a specification of general principles of virtue and morality to a particular time and place. For Prof. Blakey, law was a craft akin to architecture, neither as determinate as mathematics nor as indeterminate as art. The architect starts work from a set of general principles (the number of bedrooms, the number of stories, the style of the house, etc.). Many possible types of houses can be built that comply with those principles. What makes a particular design better or worse will depend on the circumstances. Experience, taste, and judgment separate the choices of a master architect from that of a mere apprentice. And reasonable minds can often disagree as to what is best.

Similarly, legal decision-making does not merely mean choosing some “right” answer and rejecting “wrong” ones. Rather, as Karl Llewellyn described in The Bramble Bush, there may be many internally consistent and defensible “ladders of logic” leading to the resolution of a case that a judge can choose from. (Prof. Blakey also loved to teach Llewellyn’s celebrated article on the “dueling” canons of construction.) How one chooses between them—and one cannot avoid making some kind of choice—is at the heart of the enterprise of legal interpretation. Even if one adopts a seemingly objective way to make the choice (like grammar, or history, or economic efficiency), the decision to rely on some objective factors, but not others, is itself fraught with subjectivity.

Of course, not every determination of the law is defensible, just as an architect can be wrong if she builds a mid-century modern house when the client asks for a colonial. Prof. Blakey would end his jurisprudence class by lecturing about the controversy over whether the men who perpetrated the crimes of the Nazi regime could fairly be subject to legal proceedings. At the time, some critics complained that the statutes of the International Military Tribunal convened at Nuremberg were formally promulgated after the downfall of the Nazi regime and the defendants had been acting in compliance with their domestic law, such that the trials were not a true exercise of law. Prof. Blakey rejected this view. Echoing Aquinas, Prof. Blakey contended that there were standards of objective morality that could be known to all; that certain principles of law (which today form the basis of international human rights law and just war theory) could flow from those principles; and that laws violative of those principles are simply not laws at all.

I’m familiar with criticisms that associate classical legal theory with a sort of right-leaning, results-oriented jurisprudence that fails to attend properly to positive legal materials. I think Prof. Blakey would have been surprised by these criticisms. He was well versed in, and at times sympathetic towards, the perspectives of the critical legal theory school that applied Marxist analysis to the law, in no small part due to his own deeply held commitment to left-wing economic populism. He was also one of the finest technical lawyers I have ever known. A master draftsman and litigator as well as a scholar, he could break down the text and syntax of dense criminal statutes on the fly while lecturing, exposing with precision the point of contention between the parties in the case under discussion. He once quipped that Richard Posner’s jurisprudence terrified him, but that he rarely found himself in disagreement with his judicial opinions. He could appreciate excellence in the craft of lawyering when he saw it, even from people with whom he strongly disagreed.

In his jurisprudence, Prof. Blakey pursued a middle ground between what he viewed as extremes: a positivism that proposes determinative answers to legal questions through ostensibly objective analysis, be it of text, history, or economics; and a realism that sees law as nothing more than an exercise of will unbounded from any constraints, positive or otherwise. That pursuit was not a partisan project, but an attempt to surface the true nature of the legal enterprise and to advance discussions of law and policy grounded in what lawyers and judges are actually doing. His emphasis on the reality of law as a craft, subject to enduring moral principles, and rooted in ancient wisdom, has much to say about modern debates on legal theory. I hope his passing will prompt others to explore his work within the classical legal tradition and to consider the lessons it may have for navigating today’s controversies.

Requiescat in pace.

Further reading

G. Robert Blakey, Of Characterization and Other Matters: Thoughts about Multiple Damages, 60 Law and Contemporary Problems 97 (1997) (a tour de force on the classical origins of, and justifications for, multiple damages awards).

G. Robert Blakey, Time-Bars: Rico-Criminal and Civil Federal and State, 88 Notre Dame L. Rev. 1581, 1584 n.4 (2013) (a prime example of a lengthy Blakey footnote exploring the classical origins of the concept of statutes of limitations and laches).

He is now working on a book on the collapse of British state capacity and how it can be rebuilt, Make Bureaucracy Great Again, due to be published by Polity Press.

Everybody supports localism and devolution in principle. But is everyone a centraliser on things they care about? And is any attempt to maintain ‘subsidiarity’, still less to encourage greater devolution, swimming against an inexorable tide?

In the UK, political parties routinely include in manifestos promises to end the excessive centralisation of Whitehall. Governments since 1997 have implemented devolution, local mayors and Police and Crime Commissioners. Sometimes this is about devolving legal competence, as with Scotland and Wales. Within England, devolution is often more about localising policy and spending decisions (with tax often seen as a bridge too far).

The outcomes have varied. The mayors have been a mixed story. PCCs are widely felt to be a disappointment, with almost none of them taking up the opportunity of genuinely trying something new . Even in London, citizens seem automatically to assume crime is the fault of central government, rather than the Mayor’s responsibility.

There are some brave Fabian voices who express scepticism about the whole idea of devolution. They cite Bevin’s quote that the government should centralise power in order to give it away. Whatever the merits of the argument, the long view seems to suggest that centralisation is a pretty iron law anyway (though giving power away is as distant as ever).

The history of England is one of more or less unbroken gradual centralisation since the time of the Tudors. Thomas Cromwell extinguished autonomy in Wales (the Marcher Lords) and in holdouts like the Palatinate of Durham. Over the period of the seventeenth and eighteenth centuries, even as the power of the monarchy faded, the combination of the King in Parliament created a small but ever more tightly integrated central state, with developing national institutions like the Bank of England and the Excise comprising a formidable revenue raising machine that repeatedly overwhelmed France’s fiscal capacity, despite the latter being a much bigger country and economy.

Throughout the modern period, the state gradually grew, first directing local authorities and then increasingly aggregating its powers, rationalising its borders and breaking the links with other previously local functions like police and fire. Ever more central agencies were created to take on functions previously belonging to local authorities. Only the ancient Corporation governing the City of London survives the deluge.

This process was echoed all over Europe. In France, Tocqueville argued the techniques adopted by the Ancien Régime to increase its power locally were adopted and built on after the Revolution, with France ending dominated by Préfets governing the Départements, direct descendants of the Ancien Régime’s Intendants. Meanwhile, centrally dictated education almost completely rooted out the local languages and dialects which most French had previously spoken. In Bernadette’s vision at Lourdes, the Virgin Mary spoke Gascon, a language more or less dead in the village within a couple of decades of Bernadette’s death.

This process of homogenisation is a curious one. Years ago, I was hiking through Northern Germany and crossing the border into the Netherlands. At once the language changed, of course. But a few hundred years ago, the inhabitants of a German village would better have understood someone ten miles over the border in Holland than someone twenty miles away in Germany. Now radio, television and a unified national language taught in schools makes those on the continent immediately comprehensible to a compatriot hundreds of miles away but incomprehensible to a close neighbour, creating sharp lines where none previously existed.

Germany in the Imperial period saw a steady increase in central power, which continued during Weimar. The biggest single piece of work needed for Nazi domination of Germany had already been done for them by the last Conservative Weimar government - the Preußenschlag, dissolving the Prussian government which had been a stronghold of opposition to Naziism. After the war, the victorious allies imposed a new federal system. Even then, the states didn’t recover the tax autonomy of the Weimar constitution, and the balance of power has shifted rapidly in the 80 years since the foundation of the Republic. Under the Federal constitution, the states swapped local autonomy for the right to co decision in Federal policy through the upper house, the Bundesrat. Competences have steadily drifted to the Federal level, including issues like education and culture, originally envisaged as wholly matters for the states. Reforms in 1969 and 2006 have formalised this process. In the meantime, local government below state level has seen successive waves of consolidation, with the number of municipalities reducing by about 75% since the foundation of the Federal Republic.

The United States prides itself on the strength of its states and the scope this gives for diverse local political cultures. Tyler Cowen frequently argues that the quality of local and state government in the US argues against claims of declining state capacity. But the last 100 years has seen a truly massive transfer of power from the state to the Federal government. Many argued at the time that the New Deal institutions and departments were of dubious constitutional legality. In the civil and criminal law the definition of ‘crossing state lines’ has enabled a huge extension of Federal jurisdiction for things like ‘wire fraud’. And where legal powers were lacking, the purse strings were enough to force compliance, like the withholding of Federal road building funds enforcing a move across all 50 states to raise the drinking age to 21.

Any vestigial Republican commitment to states’ rights seems to have been abandoned by the Trump administration. It’s one roll back of Federal institutions, the planned abolition of the Department of Education, is motivated more by ideology. But Trump seems very happy to use Federal law to extend influence over cities and states – notably contemplating in his Vision 47 programme using the Civil Rights Act to bear down on Soros-supported radical prosecutors. Trump has also escalated the willingness to cut all Federal funding to enforce compliance with Federal law (eg on sanctuary cities), but also to influence what have traditionally been seen as local competences (eg using the same Federal powers as Obama to reverse Obama’s position on trans participation in sport).

The same trend can be seen in two polities probably seen as at opposite poles; the Roman Catholic Church and the Swiss cantons.

The Catholic Church saw a steady process of centralisation from the Gregorian reforms of the eleventh century towards the final articulation of the doctrine of Papal Infallibility in the 1860s. The papacy saw off the challenge of the Conciliar movement in the fifteenth century, and Sixtus V reorganised the Roman Curia and clarified the Pope’s preeminence over cardinals in two key constitutions, Postquam Verus of 1586 and Immensa Aeterni Dei of 1588.

The Swiss cantons, by contrast, are famously fractious and independent. Pre 1914, cantons retained near-total sovereignty over taxation, education, police, and social policy. The federal government was weak by design — a deliberate reaction to the brief Sonderbund civil war of 1847. In practice, however, the expansion of the state and social security has seen a progressively more centralised welfare system and Federally administered fiscal transfers between cantons. Most of all, perhaps, the relationship with the EU led to centralised negotiating powers, and cantons have lost autonomy in a huge range of areas touching the bilateral treaties; notably labour, transport and the movement of persons.

Looming over all of this is the example of ancient Rome. In the early days of the Empire, the government was done by an extraordinarily thin layer of officials and actually a pretty small army – maybe representing less than 1% of the Empire’s population. The trick was to overawe enemies or potential rebels and entice in the local elites. This saw a huge period of flourishing. Trade and industry prospered across the empire. Safe from the need to compete militarily locally, elites competed for glory through leadership roles in their cities which they embellished with grand buildings, aqueducts and temples.

Over time, however, this faded. The sham of local independence became ever more obvious, so standing out in local cities became seen more as a financial burden and, perhaps, a personal risk. By the end of the third century, the Emperor Diocletian was having to force reluctant local elites to take up political offices, while real local powers like the ability to issue their own coinage was removed. Diocletian was passing laws seeking to regulate prices and wages, and building up nationalised industries for manufacturing arms. The legal code got ever larger in the latter years of the Empire even as the real grip over the population weakened.

We tend to look at historical processes through a Marxist eye – who is dominating whom, and treat processes of centralisation as planned from the top. While this may sometimes be the case, the role of the final adjudicator attracts power whether the holder is particularly looking for it or not. Sometimes, indeed, the pressure comes from below. The English Common Law came about because local plaintiffs trusted the King’s law more than they did local manorial courts. Stendahl’s Vie de Napoléon argued that the Napoleonic Code was popular for being strictly objective, even if remote from the facts on the ground. Arguably Diocletian’s measures and the growing central bureaucracy was at least as much a reaction to developments below as an imposition from above – responding to the decay of local administration and the risk of a vacuum emerging.

Ironically, even strong opponents of centralisation cannot resist furthering this process. Liberal critics of the infallible Papacy and proponents of ‘conciliarism’ (who demand a greater role for local bishops’ conferences) were among the first to criticise Rome for not stepping in to impose a tougher disciplinary approach on local conferences once the child sex abuse scandals broke. Whatever the motivation, once power has shifted, it tends to stick. And in modern democracies, the obsession with equal treatment and fairness works against any system of real devolution. There is no criticism of a public service in the UK seen as more damning than the claim that it is a ‘post code lottery’ – though this is almost the definition of how a devolved system ought to operate. If people cannot make different choices on spending and services in their area, it is hard to see what the point of devolved power is.

There are obviously exceptions to this trend – states like the Polish Lithuanian Commonwealth or the Holy Roman Empire. More recently, several countries have made determined efforts over recent decades to decentralise. The most dramatic is Spain, which went from a hyper-centralised state under Franco to a radically devolved, but also unstable, constitution now. France has decentralised administratively but not fiscally. Italy has decentralised on paper while remaining operationally incoherent.

It remains to be seen if any of these initiatives are capable of resisting the deeper currents. I think the rule is that any entity that can assert its authority to be the final court of appeal will attract ever more power to itself and hollow out the entities below. If it cannot assert such authority, it will wither away and true power will devolve to subordinate bodies like the German electorates which, as the Holy Roman Empire decayed became kingdoms, only to be subsumed in turn by the Second Reich. This may be the ultimate test that determines whether devolution in Spain or for Wales and Scotland within the UK fades away or leads to national break up.

Where will all of this end? The fragility and inflexibility of centralised power is rightly lamented. Jared Diamon’s Guns Germs and Steel argues the fragmented and competitive world of Europe gave it long term civilisational advantages that ultimately enabled it to overtake China. De Tocqueville’s description of the American township are justly famous. ‘Subsidiarity’ lies at the heart of much Catholic social teaching. Restoring that local dynamism would be a huge prize. It feels like an experiment that has to be attempted, though proceeding, perhaps, with the optimism of the will, the pessimism of the intellect.

As our readers will know, my friend Adrian gave a great keynote address at the conference on the topic of “Plural Tyranny”, which you can read here:

I was delighted to present a paper on De Knonick and his thought on dignity, rights, and the common good titled “Charles De Koninck as Tonic: On Rights and the Common Good”

In case of interest I have uploaded a draft of the essay on SSRN. The abstract is as follows:

“For those of us who are committed to the revival and health of the Aristotelian-Thomistic tradition and its relevance to law and legal practice, the work of Charles De Koninck remains an authoritative source of influence. De Koninck’s thought on key juridical concepts like the common good, human rights, and the relationship between the good of the individual and the common good of the political community, provide powerful analytical tools with which to assess the soundness, indeed, goodness of the work of contemporary legal institutions. He is a sure guide for navigating and exposing what are, from a classical natural law perspective, conceptual and moral errors in juristic thought that have proliferated since the 1960s in countless legal systems, and his work is a stiff tonic for remedying them.

In what follows, I use De Koninck’s thought to interrogate several of the foundational philosophical concepts underpinning the work of the most powerful and influential human rights courts in the world: the European Court of Human Rights based in Strasbourg, which is the ultimate interpreter of the European Convention on Human Rights. The decisions of this Court have a very considerable impact on the domestic law and policy of forty-seven member states and, consequently, the lives of hundreds of millions of their citizens.

De Koninck’s work offers a powerful explanatory account of why the Court’s approach to some foundational juristic issues is based on an undesirable account of what the purpose of human rights is, and what the correct relationship is between the individual good and the common good. Measured against De Koninck’s thought, the Strasbourg Court’s approach is undesirable because it implicitly severs questions of what rights are for, and how to determine their scope, from any serious consideration of what people are owed in justice or what patterns of legal obligations, freedoms, and liberties help promote the common good of each and all. The Court’s approach to the question of how individual rights’ claims relate to the common good is equally troublesome, as it paints an antagonistic picture of the relationship between an individual’s good and the common good, where the latter is alien to the former.

De Koninck’s thought offers a more promising conceptual foundation for understanding what the purpose of rights are and for how the individual’s singular good and the common good should be related; a more promising account based on a sounder and healthier vision of human flourishing within political community. While there is vanishingly small chance (in the near future at least) that the Strasbourg Court will alter its current approach on these issues, it is nonetheless worthwhile to sketch out what a better alternative, grounded in both sound speculative and practical reasoning, might look like.”

Subscribe now

Another round of a perennial debate has broken out: is the Supreme Court a “political” actor? The latest round was kicked off by remarks of the Chief Justice at a Third Circuit judicial conference. As reported in the media, the Chief Justice lamented the public’s perception of the Court on the ground that the public overestimates the degree to which the Court is “political.”

Interestingly, reports of his remarks have differed in material ways. According to NBC News:

“I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides,” Roberts said. “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty.”

While he conceded that people have a right to criticize the court and its decisions, he added that there is a tendency to focus too much on politics.

“We’re not simply part of the political process, and there’s a reason for that, and I’m not sure people grasp that as much as is appropriate,” Roberts said.

The Associated Press report, however, is somewhat different. I’ve italicized some discrepancies between the two:

“I think, at a very basic level, people think we’re making policy decisions, we’re saying we think this is how things should be, as opposed to what the law provides,” [Roberts] said. “I think they view us as purely political actors, which I don’t think is an accurate understanding of what we do.”

Roberts didn’t reference any specific decisions in his remarks, but said the court is “simply not part of the political process.”

Opinions, he said, are based on the Constitution — though he acknowledged disagreement with some outcomes. “One thing we have to do is make decisions that are unpopular,” he said.

Did the Chief Justice really say, as the AP would have it, that the Court is not a purely political actor? Does that mean it is partly so, or sometimes so? Did he say that the Court is “simply not part of” the political process (AP), or “not simply part of the political process” (NBC)? These are of course two very different statements.

Whatever the Chief Justice said or meant, let me try to disentangle the larger topic at least a bit. Whether the Court is “political” is one of those topics on which it is impossible to say anything intelligent without defining one’s terms. Conversely, once the terms are defined, it usually turns out that the debaters were simply talking past one another. The essential problem is that “political” has a myriad of antonyms. Whoever discusses whether the Court is “political” usually draws, expressly or implicitly, on some contrasting concept. I will lay out some major antonyms of “political” in the hopes that doing so will bring at least a glimpse of light. At the end I will offer an antonym of my own, one which suggests that perhaps the Court is not excessively “political,” but insufficiently so.

Political vs. Legal. For the Chief Justice, the antonym of “political” seems to be “what the law provides.” Proponents of this sort of claim tend to argue from an internal legal point of view, emphasizing that legal doctrine itself puts “political questions” outside the judicial remit and commits them to the decision making of other branches of the government (which lawyers sometimes call “the political branches,” in contrast to the courts). Skeptics, by contrast, argue that the Justices’ perceptions of what the law provides are themselves influenced, perhaps unwittingly, by their attitudes about “politics,” in one or another of the senses I try to untangle below. After all, the argument runs, in the sort of hard cases that tend to reach the Court, cases in which the legal materials cut in different directions and reasonable minds can differ, “political” biases, in any of the senses I canvass, have plenty of scope to operate.

Note that the internal-doctrinal view and the external-skeptical view can coexist; both may be true at different levels or from different perspectives. Often this ersatz debate takes the form of lawyers emphasizing the internal-doctrinal view, while (certain types of) political scientists and economists emphasize the external and more skeptical view.

Political vs. Counter-majoritarian. As a sort of corollary to his remarks, the Chief Justice seems to say that because the Justices decide according to “what the law provides,” then “one thing we have to do is make decisions that are unpopular.” This echoes an old strand in constitutional theory, which claims that the very point of constitutional law is to be “counter-majoritarian,” or (in a more modest procedural variant) to keep open the “channels of political change.” After all, the thinking runs, if a position is popular with the majority, it will be protected by the political process and enacted into law without the aid of the courts.

That such a view is hopelessly simplistic should go without saying. The idea that the majority will necessarily or even systematically get its way in a “democratic” system is belied by public choice theory, by important sectors of political science, and by common observation. Small but passionate groups with high stakes, influential elites, and other minoritarian actors may have influence over political outcomes that are greatly disproportionate to their numbers.

Political vs. Nonpartisan. On a different axis, the debate is sometimes cast this way: the Justices’ decisions are inevitably “political” in the broad sense that they are of concern to the polity at large, and have political consequences, but at least they neither are nor should be partisan. They do not, and certainly should not, systematically favor the interests of one political party or faction over another.

A skeptical counter-view, however, holds that the Justices do decide in a partisan fashion, at least in some ill-defined set of “important” or “controversial” cases — the sort of cases the Court tends to decide in June and in which the votes sometimes or often break down according to the party of the President who appointed the Justices. On this view, one may hold that we really have two different Supreme Courts — the one that decides ERISA cases in January or March, and the one that decides on questions fraught with ideology and partisan conflict in May or June. This sort of theory, however, risks becoming tautological, as the set of “important” cases is itself implicitly defined as the set of cases in which the Justices break down on lines that track larger political cleavages. How often this happens, and what exactly the relevant set of cases might be, are much debated.

Political vs. Partial. In the hopes of some relief from these familiar and rather interminable debates, let me suggest a different antonym, with a pedigree as old as the hills. On this view, the proper contrast to the “political” is the narrow and partial, whether the partiality is that of an individual or a special group or guild. Although this contrast is sometimes associated uniquely with republicanism in political and constitutional theory, it is a far older and larger view. On this view, the political is the highest and largest sphere of temporal life in any community. A well-ordered polity is one in which the common good is internalized as the end and aim of public action by all magistrates and indeed citizens in the community, who understand that the good of the community is also the highest temporal good of individuals.

Of course, different offices act according to their particular roles, for that differentiation too is part of the common good; the body politic has various organs that each contribute to the good of the whole in distinctive way. Legal reason is not the same as the discretionary prudential decision making of “political” officials (in the first sense above). The judge should broadly defer to the determinations of lawmaking officials so long as those determinations are rational, as opposed to arbitrary, and ordered to the public interest. But a judge should also understand that the law is made and interpreted for an end, the welfare of the whole body, and that the judge is given office to judge for the sake of that same end and with a view to that end. The law is not somehow an end in itself, but an ordinance of reason made for human beings and their welfare in political community.

In the judge’s case, the task of promoting the welfare of the whole polity runs through the judge’s special role and duty: to “administer justice… faithfully and impartially” (as the federal judicial oath puts it). But impartial justice, the giving of each what is due to them, includes where appropriate a consideration of the good of the whole, as part of apportioning what is due, for the common good is always already built into the entitlements of individuals. As Chief Justice Marshall put it, “that consequences are to be considered in expounding laws, where the intent is doubtful, is a principle not to be contradicted,” at least where willful blindness to consequences would mean that “fundamental principles are overthrown.” The judge must sometimes take account of the welfare of the whole polity in legal interpretation, not as an alternative to faithful interpretation, but as part of faithful interpretation, precisely because it is part of the judge’s office and role to presume that lawmakers intend the good of the whole and interpret the laws accordingly.

Conversely, it is a form of culpable partiality or narrowness of view, even a form of culpable individual or institutional self-interest, for the judge to wash his hands of any consideration of consequences for the welfare of the polity in the interpretation of the laws — as the Chief Justice seemed to do in his Pilate-esque remarks during the oral argument of the birthright citizenship case. The “political” in the highest sense is what concerns the wellbeing of the polity, and the judge too must take this into account as part of legal interpretation, albeit in the particular mode appropriate to the role and office of judging. On this high sense of “political,” the charge that can justly be lodged against the Chief Justice is that he is not political enough. And so too for the Court generally, to the extent it shares his view.

Share

Siva as Lord of the Dance, 11-12th century, Metropolitan Museum of Art

The New Digest is pleased to present an essay by Mr. Rohit Viswanath, who is Managing Trustee of the Nāṭyaśāstra Gurukulam, a centre for civilisational statecraft based in Navi Mumbai, India.

Subscribe now

Share

Modern constitutional democracies rely on institutional mechanisms to restrain political power. Yet these mechanisms presuppose forms of ethical restraint that they cannot themselves generate. Constitutional order, in this sense, depends not only on how power is structured, but on how human aims are ordered. Power (artha) and desire (kāma) do not become legitimate merely through institutional regulation; their legitimacy arises only when grounded in dharma, understood as an internalised principle of ethical order. In this view, dharma does not merely constrain political action but constitutes the conditions under which it becomes meaningful and stable. It operates not only as a restraint on wrongful action, but also as a positive source of orientation, enabling and inspiring forms of conduct aligned with ethical order.

Situating institutional design within a broader civilisational framework of motivation and restraint allows for a different understanding of constitutional order. It suggests a perspective that complements liberal constitutionalism while bringing it into dialogue with classical traditions of political thought. Durable constitutional equilibrium depends not only on institutional design, but on the orientation of the ends toward which power is directed. While constitutional forms may converge across societies, the ethical and ontological frameworks that animate them remain civilisationally distinct.

Limits of Institutional Design

Modern constitutional democracies rest on a foundational premise: that the concentration of political power can be restrained through institutional design. Mechanisms such as separation of powers, federalism, and checks and balances seek to preserve liberty by distributing authority across competing centres of power. In the American constitutional tradition, this logic finds its most influential expression in the writings of James Madison, who argued that political stability depends upon structuring institutions so that ‘ambition counteracts ambition’. Institutional design operates at both structural and organic levels: the former through formal rules, procedures, and allocations of authority, and the latter through the evolution of norms, practices, and ethical dispositions that cannot be fully codified. While structural mechanisms can be deliberately constructed, their effective functioning depends upon organic conditions that sustain restraint from within.

This logic extends beyond political theory. As Adam Smith argued, competition in markets channels self-interest toward socially beneficial outcomes. In both political and economic domains, institutional design seeks to harness artha through structured rivalry.

This insight has shaped constitutional design across modern polities. Institutions such as the judiciary play a critical role in restraining power, deterring misconduct, and correcting deviations. These functions are indispensable to constitutional order. Yet even within the Western tradition, it has been recognised that institutional arrangements alone cannot secure durable equilibrium. Procedural forms are necessary, but not sufficient; their effectiveness depends on the ethical values that animate their use.

This limitation has become more visible as governance grows in complexity. Contemporary states operate through dispersed networks of authority comprising regulatory bodies, administrative agencies, and hybrid public–private arrangements, within which discretion is exercised at multiple levels. As institutional systems expand, the ethical conditions required to sustain them do not automatically keep pace. The result is a growing dependence on procedural mechanisms to manage behaviour that was once regulated by shared norms.

The problem, therefore, is not merely institutional but motivational. The question is not only how behaviour is constrained, but how it is oriented. Constitutional design presupposes forms of restraint that lie beyond its own capacity to produce.

Institutions can distribute power. They cannot determine the ends that power serves. This gap between structure and orientation defines the central problem of this essay.

Western Constitutional Thought and Its Constraints

The Western constitutional tradition has long recognised the dangers of concentrated power and the need to structure authority to prevent domination. From James Madison’s institutional pluralism to later reflections in European thought, the emphasis has consistently been on designing mechanisms that channel and constrain political ambition.

At the same time, this tradition has also acknowledged its own limits. Edmund Burke emphasised that political order rests not merely on formal arrangements, but on inherited moral traditions and social habits. Alexis de Tocqueville similarly observed that democratic stability depends upon civic norms that guide how freedom is exercised in practice. In the twentieth century, Michael Oakeshott distinguished between governance as rule enforcement and governance sustained by traditions of judgment.

These perspectives converge on a shared insight: institutions can structure power, but they cannot fully determine the motivations with which that power is exercised. This reveals a structural asymmetry: institutions regulate outcomes, but not motives, which depend on ethical and cultural conditions beyond formal design.

Liberal constitutionalism, in its dominant modern form, tends to bracket questions of ultimate ends, focusing instead on procedural fairness and the regulation of competing interests.

By contrast, many classical traditions in both Western and Indian thought have sought to embed political order within a prior account of human purpose.

What remains insufficiently theorised is the ordering of human aims themselves. It is precisely this question that the puruṣārtha framework addresses.

The Problem of Motivational Imbalance

These limitations become more acute in contemporary governance. Such systems extend beyond traditional institutional forms to include regulatory networks, public–private arrangements, and increasingly, algorithmically mediated processes. In such environments, the challenge is no longer merely the distribution of authority, but the diffusion of responsibility itself. As discretion becomes embedded across layered and often opaque structures, the capacity to assign accountability weakens, even as the scope of decision-making expands.

As a result, governance systems attempt to preserve order through external controls even as internal sources of discipline weaken. A purely restrictive model of governance seeks to prevent misconduct. A more complete framework must also enable right action by orienting motivation toward ethical ends. Three patterns frequently emerge: the expansion of rules to compensate for declining trust; the intensification of monitoring and enforcement; and the gradual erosion of institutional legitimacy. These developments reflect an increasing reliance on procedural mechanisms to manage behaviour no longer adequately regulated by shared norms.

The result is a structural paradox. Efforts to stabilise governance through procedural expansion often increase complexity while leaving underlying motivational imbalances unresolved. Institutional systems become more elaborate, yet more fragile, as the gap widens between formal regulation and the motivations it seeks to govern. The question, then, is not only how motivations may be constrained, but how they may be ordered. What we describe as motivation may be understood, at a deeper level, as the ordering of human aims.

What is required, therefore, is not merely a critique of institutions, but an account of how human aims themselves are ordered.

Puruṣārtha: A Framework of Motivational Order

The classical Indian framework of puruṣārtha is often described as a fourfold schema: dharma (ethical order and normative restraint), artha (power and material capability), kāma (desire and aspiration), and mokṣa (liberation or ultimate fulfilment). Yet this enumeration can obscure its deeper structure. These are not merely co-equal aims arranged within an external hierarchy, but a structure of dependence in which dharma is the generative principle that orders and legitimises the pursuit of artha and kāma, and thereby opens the horizon toward mokṣa.

Artha and kāma are frequently treated as the primary drivers of human action in political and economic life. Yet within this framework, their legitimacy is not self-grounding. Power and desire do not define their own limits. Their proper scope emerges only when they are situated within dharma, understood not merely as external rule, but as an internalised principle of order, proportion, and right relation. Within this framework, the pursuit of artha and kāma is legitimate only when aviruddha, that is, when it does not stand in conflict with dharma. This orientation reflects a deeper grounding in ṛta, an ontological order in which reality is structured and intelligible. Dharma, in this sense, may be understood as its normative articulation within the sphere of human action. If ṛta denotes the ground of order, dharma expresses that order in lived practice.

In this sense, dharma does not merely constrain artha and kāma; it constitutes them as meaningful pursuits. Without such ordering, power degenerates into domination and desire into excess. With it, both become capable of sustaining social and political equilibrium.

When artha and kāma are aligned with dharma, it contributes to a deeper reorientation through which individuals may come to glimpse, however imperfectly, ṛta, the underlying order of existence, and their place within it. Action is thus situated within a broader horizon, shaped not only by compliance with rules, but by an understanding of proportion and limit.

The framework is completed by mokṣa, which introduces a higher telos. Beyond the immediate pursuits of power and desire lies the possibility of a more fundamental realisation: that human dignity is not contingent upon accumulation, possession, or status. This paradox, of renunciation enabling true enjoyment, captures a deeper insight: one may ‘renounce and enjoy’, discovering freedom not through accumulation, but through detachment. Classical reflections, such as the non-dualist philosopher Ādi Śaṅkara’s Kaupīna Pañcakam, capture this intuition, suggesting that excessive accumulation may itself become a burden rather than a source of fulfilment. By relativising the ultimate significance of power and possession, mokṣa stabilises the ethical authority of dharma.

Even within modern psychological thought, there are gestures toward such an ordering. In his later work, Abraham Maslow extended his framework beyond self-actualisation to include self-transcendence, recognising that human fulfilment may ultimately lie beyond the satisfaction of individual desire. This insight parallels, in a different conceptual vocabulary, the orientation toward mokṣa.

Ethical restraint, in this view, arises not only from enforcement or social expectation, but from an understanding of limits grounded in a broader conception of human ends.

The puruṣārtha framework offers an integrated account of motivation, ethics, and purpose. It does not reject power or desire, but situates them within a structure that renders them compatible with stability.

Reframing Constitutional Order Through Puruṣārtha

Viewed through the lens of puruṣārtha, modern constitutional systems can be understood as attempts to regulate artha through institutional design. Mechanisms such as checks and balances distribute authority across competing actors in order to prevent domination. Yet the principle that ambition must counteract ambition presumes an ethical substratum. Where artha operates without the ordering influence of dharma, institutional rivalry risks degenerating into competition for power rather than equilibrium.

Similarly, kāma, expressed through interests, preferences, and democratic responsiveness, plays a central role in political life. Yet when unbounded by ethical considerations, it can produce short-termism, populism, and the erosion of norms.

From this perspective, constitutional design addresses only part of the problem. It structures interaction, but not orientation, and does not ensure alignment with ethical order. Constitutional order ultimately depends not on the regulation of power alone, but on the prior ordering of human aims. In the puruṣārtha framework, it is the pursuit of dharma that makes the pursuit of power (artha) and desire (kāma) compatible with stability, and that alone renders mokṣa intelligible as a human end.

Power Without Ethical Anchoring

A contemporary illustration clarifies this structural limitation. The widely discussed case of Jeffrey Epstein did not occur in the absence of legal frameworks or oversight mechanisms. It unfolded within systems that were procedurally elaborate and formally compliant.

Legal processes, negotiated settlements, and jurisdictional arrangements operated, in many respects, as designed. Yet at critical junctures, these mechanisms appeared to accommodate concentrations of power rather than constrain them. What becomes visible is not merely a failure of enforcement, but a deeper structural vulnerability: institutions can regulate the distribution of authority, but cannot, by themselves, discipline the motivations that animate its exercise.

Viewed through the lens of puruṣārtha, this reflects a condition in which the pursuit of power (artha) and desire (kāma) operates without sufficient anchoring in dharma. Where such anchoring weakens, procedural safeguards become instruments through which power negotiates its own limits.

A contrasting illustration may be found in the leadership of Mahatma Gandhi. Confronted with the immense artha and kāma embodied in the British Empire, the Mahatma did not rely on countervailing institutional power alone. Instead, he mobilised a form of ethical force grounded in dharma, reordering both action and motivation. This orientation went on to inspire figures such as Martin Luther King Jr. and Nelson Mandela, illustrating that ethical anchoring can generate forms of power that institutional design alone cannot.

Taken together, these contrasting illustrations reveal a common structural insight: where artha and kāma operate without anchoring in dharma, institutions become vulnerable to distortion; where action is grounded in dharma, it can generate forms of power that exceed the limits of institutional design.

Toward an Integrated Constitutional Ethic

In this context, dharma does not denote a sectarian doctrine, but a structural principle of ethical ordering. The foregoing analysis suggests the need for an integrated approach to constitutional thought, one that brings into dialogue the structural insights of Western political theory and the ethical frameworks of classical traditions. The question is not whether institutions or ethics matter more, but how their disjunction produces instability.

A partial parallel may be found in the ethical thought of Aristotle, particularly in the concept of eudaimonia as human flourishing through virtue. Yet a fundamental distinction remains. While Aristotelian ethics seeks fulfilment within the horizon of political life, mokṣa introduces a more radical orientation that ultimately transcends it. This gives the puruṣārtha framework a deeper account of restraint: not merely the moderation of desire, but the possibility of detachment from it.

Such a framework does not collapse traditions into one another. Rather, it allows them to illuminate complementary dimensions of a shared problem. Institutional design provides the external structure of order; ethical frameworks provide the internal discipline that sustains it. Durable constitutional systems depend on both.

Conclusion: Ethical Order and Constitutional Stability

Modern constitutional democracies have achieved remarkable success in designing mechanisms to distribute and constrain power. Yet their long-term stability depends upon conditions that lie beyond institutional design.

Constitutional order rests on a dual foundation: the external structuring of authority and the internal disciplining of motivation. The former can be specified through rules and procedures; the latter depends on ethical orientations that cannot be fully codified.

The puruṣārtha framework provides a language for understanding this relationship. By situating power and desire within a broader ethical horizon, it clarifies the conditions under which their pursuit remains compatible with stability. It does so not by replacing institutional reasoning, but by clarifying the conditions under which it can succeed.

For contemporary governance, the implication is clear. Strengthening institutions cannot rely solely on procedural refinement.

It must also attend to the ethical frameworks that shape how authority is exercised.

Where dharma no longer orients the pursuit of power and desire, constitutional order may endure as structure, but it risks losing its ethical core, the animating principle that gives it coherence and direction.

*****

Subscribe now

Share

It is by no means a coincidence that it was a son of St. Augustine who, on the eve of his arrival in Hippo, raised his voice, firm and serene, calling for peace and a de-escalation of hostilities in Iran. The U.S. government was quick to respond, even invoking the doctrine of the just war. It is difficult, however, to invoke this doctrine with justice when one does not feel a deep inner revulsion toward war itself, whether it be classified as “just” or “unjust.” Thus wrote the intellectual giant of ancient Numidia in a moving passage from his magnum opus: “Evil such as this,” he said, referring to wars, “so enormous, so horrendous, so savage—anyone who contemplates it with sorrow must acknowledge that it is a great misery. But whoever suffers it or reflects on it without feeling pain in his soul, and continues to believe himself happy, is in a far more miserable state: he has lost the human sense (humanum perdidit sensum)” (St. Augustine, The City of God, Book 19, Chapter 7).

In recent weeks, we have seen the President of the United States threatening to do nothing less than destroy a civilization; toying with the idea of “striking” the island of Kharg “a few more times just for fun”; and showing grave disrespect toward Christians and Muslims. In order to defend the legitimacy of Trump’s actions, some high-ranking U.S. officials are attempting to frame the issue of “just war” within the Christian doctrine of the “just cause” (iusta causa). This is a field from which it is not difficult to argue against churchmen, given that only those in possession of the secrets of power—the arcana imperii—are in a position to fully interpret the facts that qualify the cause of a war as just. If the issue were merely a matter of the justice of the “cause,” then civil authorities’ criticism of ecclesiastical authority might appear plausible, and one might invoke the admonition of one of the founders of modern international law, Alberico Gentili: “Be silent, theologians, on matters not your own!” (silete theologi in munere alieno!).

But as the “common doctor” of the Catholic Church, Thomas Aquinas, said, a just war requires not only a “just cause” but also a “right intention.” Drawing on Augustine of Hippo, he identifies dispositions incompatible with such intention, including “the desire to harm, the cruelty of revenge, an unyielding and implacable spirit, ferocity in battle, the passion to dominate, and other such things, which are, in all fairness, reprehensible in war” (Summa Theologiae II-IIae, q. 40, a. 1, co.). Honestly, I find it very hard not to see some of the aforementioned deviations in Donald Trump’s eccentric messages. It is part of the Supreme Pontiff’s mission to prevent the hearts of simple Christians from being corrupted by the arrogance of unscrupulous leaders. Accordingly, the Pope has pointed directly to the moral core of the gospel, the Sermon on the Mount: “Blessed are the peacemakers, for they shall be called children of God.”

One might still argue, however, that if we were to subject the rhetoric of war to strict scrutiny, it would be difficult to identify a war that fully satisfies all its conditions in practice. Has the rhetoric surrounding just wars ever been entirely pure? Or must we conclude that such conflicts do not, at least in part, meet the criteria of a just war? A rigorous analysis should surely lead us to make a clear distinction between the justice of war, referred to the ius ad bellum, and the injustices in war, referred to the ius in bello. However, even if we make this distinction, it should be added that not all injustices committed in the course of a war are equally grave. For the reasons I will outline below, I think that President Trump’s excesses in the conduct of this war are particularly serious and should be a cause for concern.

To properly contextualize his words, let us return in greater detail to the issue of the just cause of war. Following the religious division of the West in the early 16th century, the question of “who decides” and “who interprets” the truth emerged as a major political problem, both in the domestic constitutional order and in the international order. It is to Erasmus of Rotterdam, a humanist of this era of great transformations, that the question regarding the just cause of war is attributed: “Who does not regard his own cause as just?” (cui non videtur causa sua iusta?). On a purely moral level, the issue of “just cause” remained unchanged. On the factual level of intersubjective validity, however, it was beginning to pose a problem. The rupture of spiritual unity compelled the search for procedural mechanisms, limits, and formal barriers to put an end to the annihilation of religious wars. Few thinkers have grasped this historical-spiritual process with the clarity with which Carl Schmitt understood it, who expounded on it at length in one of his most important works: The “Nomos” of the Earth in the Law of Nations of the “Ius publicum Europaeum”.

Given the means of total destruction available to modern humanity, the problem of limiting the scope of war is even more pressing than it was in the 16th century. Needless to say, Iran, by financing terrorist cells that attack the civilian population, seriously violates those limits. The way Israel has conducted military operations in Gaza, however, does not seem to lag far behind. As for Donald Trump’s threats to “obliterate” an entire civilization, they constitute, plain and simple, threats to commit grave war crimes. Such bluster defies all restraint and paves the way for total war. Therefore, in a world so spiritually and ideologically fragmented, they constitute in themselves a grave threat to global balance and order.

Finally, the argument that seeks to downplay the significance of Trump’s statements by citing his informal and outgoing personality as an excuse is also unacceptable. His flippancy in matters of life and death seems to overlook the power of discourse itself to transform the concrete order—the “nomos” that shapes the maxims, principles, and expectations by which political and social actors are governed. The insistence of some on justifying themselves by repeatedly bringing the danger of the atomic threat into public discourse could—paradoxically—contribute to bringing that risk closer. If we add to the normalizing force inherent in discourse the resentment generated by humiliating actions and words, there are strong reasons to distrust military action against Iran. We must not forget that it is the hatred that has been sown which, ultimately, nourishes and entrenches the will to do harm. In this sense, it is entirely possible that military action could destroy an enemy’s immediate military capacity while simultaneously increasing its long-term danger.

Share

Subscribe now

Share

Continuing our exploration of the Digest in American law, we come to Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946). As described by Judge Matthew F. McGuire, the issue in this case was, on summary judgement, “whether an infant through its father and next friend has a right of action springing from the alleged fact it was taken from its mother’s womb through professional malpractice, with resultant consequences of a detrimental character.”

This was “a novel” question in D.D.C. By the mid 1940s, most opinions on this issue had followed the “rather anomalous doctrine … announced by Mr. Justice Holmes” in Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), which “held that at common law, in the absence of a statute, prenatal injury affords no basis for an action in tort, in favor either of the child or its personal representative.” This view was based on, according to McGuire, “the assumption” that a child in utero “has no juridical existence and is so intimately united with its mother as to be a ‘part’ of her and as a consequence is not to be regarded as a separate, distinct, and individual entity.”

Holmes’ foundational opinion concerned a mother “between four and five months advanced in pregnancy” who slipped on an allegedly negligently maintained road and fell, resulting in a miscarriage. The child lived “for ten or fifteen minutes” after delivery before dying. The plaintiff sued under Massachusetts’ wrongful death statute, the case hinging on who was a “person” within the statute.

The plaintiff argued that “person” encompassed the child here, based on a ruling at common law “by Lord Coke,” which Holmes conceded “seems to have been accepted as law in England, to the effect that if a woman is quick with child, and takes a potion, or if a man beats her, and the child is born alive and dies of the potion or batter, this is murder.” Holmes, however, distinguished this rule on several grounds, including that some later common law opinions disagreed with Lord Coke.

But what seems to really be driving the opinion is Holmes’ skepticism of the view that “an injury transmitted from the actor to a person through his own organic substance, or through his mother, before he became a person, stands on the same footing as an injury transmitted to an existing person through other interviewing substances outside him.” Take note of what I emphasized there. Holmes is simply skeptical that the unborn are “persons” or ought to be “persons” legally. His reasoning presupposes a substantive worldview about who is a person and who is not, and so he balks at the “difficulties” in the idea “that a man might owe a civil duty and incur a conditional prospective liability in tort to one not yet in being,” given that the common law rule cited hinged on whether the child lived. “Taking all the foregoing considerations into account,” Holmes concluded, “and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her, we think it clear that the statute sued upon does not embrace the plaintiff's intestate within its meaning.”

Judge McGuire was not persuaded. “Here,” he reasoned “we have a viable child—one capable of living outside the womb—and which has demonstrated its capacity to survive by surviving—are we to say now it has no locus standi in court or elsewhere?” The notion of “a viable child being ‘part’ of its mother,” he wrote, “seems to me to be a contradiction in terms” even if the child is “in the womb.” Relying on recent medical science and advancements, Judge McGuire observed “[i]ndeed, apart from viability, a non-viable foetus is not part of its mother.” Citing the Digest’s maxim “Qui in utero sunt, in toto paene iure civili intelligentur in rerum natura esse,” (Book 1, tit. 5, s. 26) (“those who are in the womb are, in almost the whole of the civil law, understood to be among the [existing] things of nature”), Judge McGuire observed that “[f]rom the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as a human being, but as such from the moment of conception—which it is in fact.” Judge McGuire pointedly assailed Holmes’ creation of inconsistency within the law on this point. “Why a ‘part’ of the mother under the law of negligence, and a separate entity and person in that of property and crime? Why a human being, under the civil law, and a non-entity under the common law? It has, if viable, its own bodily form and members, manifests all of the anatomical characteristics of individuality, possesses its own circulatory, vascular and excretory systems and is capable now of being ushered into the visible world.”

With a masterful Uno-Reverso, Judge McGuire then quoted from Mr. Justice Holmes’ most celebrated work, observing that “the life of the law has been not logic: it has been experience” and under Holmes’ own reasoning we should “find a willingness to face the facts of life rather than a myopic and specious resort to precedent to avoid attachment of responsibility where it ought to attach and to permit idiocy, imbecility, paralysis, loss of function, and like residuals of another's negligence to be locked in the limbo of uncompensable wrong, because of a legal fiction, long outmoded.” “The common law is not an arid and sterile thing, and it is anything but static and inert.” The rule that Holmes advocated for, tendentiously at that, was (ironically) highly formalistic, refusing to look real advancements of knowledge in the face. Moreover, it refused to acknowledge fundamental first principles. As McGuire observed in a footnote:

“Every human embryo is possessed of as effects within a cause of all of the sentient, vegetative and spiritual [1 ](the latter term used in opposition to the former) qualities of an adult, subject, of course, to the latter influence of environment and education. So while the state may pass a statute permitting therapeutic abortion, the individual human being thus disposed of, is no unjust aggressor. It is in the place designed for it by nature and the God of Nature, and the state here exercises a dominion over life, which is the prerogative of the Creator alone. The same prohibition would apply if the state should pass a law permitting euthanasia. Not to be confused, however, with the right to take the life of a criminal (unjust aggressor), or that inherent in it by virtue of its sovereignty in a lawful and just war.”

And thus, Judge McGuire denied the motion for summary judgment by the defendant.

PS—Dietrich was abrogated by the Massachusetts Supreme Judicial Court in 1960 in Keyes v. Construction Serv., Inc., 340 Mass. 633, which recognized the rule adopted by “the District Court of the United States for the District of Columbia” was “now held to be the law by a majority of the State appellate courts” at that time.

Subscribe now

Share

As the Holy Father begins his eleven-day African tour in Algeria, we thought it was (for many reasons) an auspicious time to recall the words of a previous Vicar of Christ, Pope Saint Gelasius I, who was reputedly born in the Roman province of Africa (today Tunisia).

An extract from Pope Gelasius I’s letter to the Roman Emperor Anastasius I, Famuli vestrae pietatis, issued in AD 494:

“For there are two, O emperor Augustus, by which the world is principally ruled: the sacred authority of pontiffs and the royal power. Among which how much heavier is the burden of priests, such that they will have to render an account to the Lord at the time of judgment even for those very kings.

For you know, O most merciful son, that although by dignity you preside over the human race, nevertheless you devoutly bow your neck to the leaders of divine matters, and from them you await the causes of your salvation, and you recognize that, in partaking of the celestial sacraments, and being disposed to them (as is appropriate), you must be submitted to the order of religion rather than rule over it. Therefore you know that in these matters you depend on their judgement, not willing to force them to your will.

For if, inasmuch as it pertains to the order of public discipline, even the bishops themselves obey your laws, knowing that rule [imperium] has been bestowed to you from on high, lest they seem in mundane things to oppose the eminent sentence; with what passion, I ask, does it become you to obey those, who have been assigned for the distribution of the venerable mysteries? Just as the danger does not fall upon pontiffs lightly, to have been silent on behalf of the cult of the Divinity, which is fitting; thus there is no slight peril to those who (perish the thought!) when they ought to obey, look askance.

And if it is settled that the faithful submit their hearts to all the priests in general who pass on divine things rightly, how much more must they submit to the prelate of that See, whom the highest Divinity willed also to be preeminent above all priests, and which the piety of the universal Church subsequently celebrated.”

***

Full text available here: https://thejosias.com/2020/03/30/famuli-vestrae-pietatis/#_edn1

Subscribe now

Share

A recent decision from the Vatican’s Court of Appeal in a case involving a disgraced cardinal raises a fascinating issue regarding the necessity of promulgation of an ordinance in order to be characterized as law. The case involves the criminal trial of Angelo Becciu, who in 2020 submitted his resignation from various offices and renounced his cardinalatial privileges at the request of Pope Francis following accusations that Becciu had embezzled funds. The case itself is rather complex, but the facts do not need to be rehashed here for our purposes.

Becciu was initially convicted by the Vatican court of first instance of various financial crimes. He appealed on several grounds. The grounds of relevance here are (1) that certain information of record in the files of the Vatican’s prosecutor had not been shared with Becciu’s lawyers, and (2) that four papal rescripts granting the prosecutor various powers were defective, and therefore the prosecutor’s acts pursuant to those rescripts were not consistent with Vatican law. The Vatican Court of Appeal found that the full files had not been shared as required under due process protections in the Code of Canon Law, and that one of the rescripts was defective as it had not been published. Therefore, the court issued a partial declaration of nullity and ordered further sharing of information and proceedings. A summary news report of the decision may be found at Vatican News.

The unpublished rescript has proved a matter of some controversy, as it appeared the Vatican’s Court of Appeal was exercising some level of judicial review over an action taken by Pope Francis in his role as Supreme Legislator of the Church. Ed Condon at The Pillar, a canon lawyer and reporter who has been following the Becciu case for years, wrote in a now-paywalled post that the order raised a question about papal sovereignty. To paraphrase Condon’s comments, if a Vatican court of appeal could effectively declare a Papal act invalid, then what limits exist on that power? Could a court act not only with respect to matters of canon law but even statements or juridical acts that carry some theological significance? After all, canon law is not limited to criminal matters; it undergirds the very organization and operation of the Church. The Pope has for centuries been the Supreme Legislator and monarch of the Church, and this action could be seen as undermining that power.

While I am not a canon lawyer and want to give due deference to Condon, I think some of these concerns are exaggerated. The problem here is that the unpublished rescript did not meet the classical definition of a “law” because it was never promulgated. Initially, the Court of Appeal faulted the prosecutor for failing to turn over to the defense various documents and records, and supporting legislative grants of power as required under the applicable legal rules and Vatican due process. Then the Court of Appeal turned to the issue of a Rescript dated July 2, 2019, which purported to grant the prosecutor the authority to proceed under “summary procedure” in certain financial crimes cases. Without digging into the details, summary procedure is less formal and required fewer disclosures and notifications to the defendant than the normal investigative procedure otherwise provided for. The problem for the prosecutor is that this Rescript was never published, either generally or at least to the defendants who would be subject to the changed procedures. The Court of Appeal states that this Rescript took on a “legislative nature” in view of its “direct and immediate impact on the current legal system.” Therefore the Rescript needed to be published, or at least be disclosed to the individuals who would be affected by that change in rules. (While the due process grounds discussed in the earlier portion of the case were independently decided, there is certainly the implication here that the prosecutor was relying at least in part on the July 2 Rescript in order to withhold the portions of the record that were not provided to the defense.)

The Court of Appeal further stated that while the Rescript provided for the withholding of certain information from the defendant, it did not say that the Rescript itself should have been kept secret from the defendant. On this ground, the Court of Appeal held that “the failure to publish the Rescript of July 2, 2019 has affected the legitimacy of certain investigative acts taken on the basis thereof.” The Court of Appeal is clear that Pope Francis, acting as Supreme Legislator, had the authority to make the procedural change set forth in the Rescript. It was the failure to publish that rendered it ineffective.

The Court of Appeal decision is the second recent instance of a legal rule being potentially invalidated for failure to publish. (Conor Casey addressed the lack of promulgation of an agency rule under Irish law in 2024 here.) What is interesting here is that the Court of Appeal makes no reference to any canon law, prior Vatican legal decision, or indeed any other source of internal law for its presumption that a document having a “legislative nature” necessarily must be published in order to be effective. The Court of Appeal can only be relying upon the general definition of what makes a law a law, as classically understood. A law, Aquinas says, is an “ordinance of reason for the common good, made by him who has care of the community, and promulgated.” That this is an ordinance of reason and made by “him who has care of the community” (i.e., the sovereign, in this case, the Pope), there is no question. The Court of Appeal’s holding, then, turns on the idea that a change in procedural due process in criminal cases is directed toward “the common good.” This is what the Court of Appeal means by the Rescript having a “legislative nature,” rather than an executive, theological, or other nature. With that determined, the law must be promulgated to be effective. Since it was not, the Rescript was not in effect as law.

In effect, the Court of Appeal is saying that the Pope can do what he wants from the point of issuing ordinances of reason directed to the common good, but the nature of law requires promulgation. Condon’s concern is that the Court of Appeal is effectively second-guessing the Pope: who are the judges to say that the Pope was incorrect in asserting that the Rescript was not of a legal character? Isn’t this just American-style judicial review by any other name? I disagree. The Court of Appeal is simply acknowledging the principle of non-contradiction. It is no limit on the legislator’s substantive power of lawmaking to recognize that an ordinance that fails any part of Aquinas’ classical definition of law is, ipso facto, not a law. Suppose that instead of failing to publish the Rescript, the prosecutor did publish it and claimed it was from Pope Francis, when in fact Pope Francis had not issued it. There would be no question that the Rescript was ineffective for failing to meet a different element of the definition of “law.”

Fair enough, Condon might say, but isn’t it still a problem that the Court of Appeal is making this determination? Does it not limit the Pope’s power? Again, I don’t think that’s the case. Think of the old canard about limitations on God’s omnipotence: Is God able to make a square circle? No, He cannot, because to do so violates the principle of non-contradiction. To come to any other conclusion would be pure nominalism, and our conclusion that square circles are impossible even for God does not contradict the fact of God’s omnipotence. The same applies to the Rescript. If the definition of “law” has any meaning, the Court of Appeal cannot decline to apply that definition, even when considering Papal actions.

In summary, even in a system of combined powers under an absolute monarch, “law” still retains its essence as reasoned ordinances directed to the common good, issued by him having care of the community, and promulgated. The Court of Appeal’s decision is the correct one, and I think it would have been more scandalous had it arrived at a different decision.

Share

Subscribe now

I was pleased to see that at the oral argument in the birthright citizenship case, Trump v. Barbara, both Justice Alito and Solicitor General Sauer invoked Justice Scalia as a proponent of the view that statutes and constitutional provisions ought to be interpreted reasonably, in a way that tries to make the pattern of the legal instrument’s applications coherent in light of a plausible attribution of sensible principles to the lawmakers and the legal scheme.

On this view, one cannot dismiss the major putative “exceptions” to birthright citizenship — for children of foreign diplomats, children of alien enemies born in territory under foreign occupation, and (putting aside later statutes) children of Native Americans under tribal jurisdiction — simply as “quirky” curiosities, pace a comment of the Chief Justice. The key question is what “subject to the jurisdiction thereof” in the 14th Amendment means, and that phrase is hardly self-interpreting; it has no “ordinary meaning.” It is too obviously a legally freighted concept, saturated with implicit principle. It demands consideration of what sort of jurisdiction is at issue (political allegiance, or sovereign authority to enforce the law, or both, or something else?), as well as what it might mean to be “subject” to that jurisdiction. The duty of the judge is to discern the set of rational principles that makes sense of what the lawmakers, who are presumed to be reasonable, did in creating the pattern of exclusion and inclusion; to explain how the so-called “exceptions” derive from the logic of the main article; and then to ask what are the implications of that logic, rightly understood, for the situation posed by the case at hand. As Justice Scalia urged, absent an unmistakably clear statutory command, “it is our role to make sense, rather than nonsense, out of the corpus juris.” Conversely, as he also wrote, “the nature of the consequences that ensue” from a given interpretation may offer a “powerful indication” of what the reasonable interpretation might be.

One might think that these propositions offer a humble, rather common-sensical view of the judicial role. Indeed that view properly ought to be seen as the common starting point for legal interpretation and thus something of a banality. But it is a proposition that important sectors of the so-called “conservative legal movement” have denied in increasingly strident terms in the past decade or so. In so doing, I believe they have distorted Justice Scalia’s jurisprudence and legacy rather badly. I have long argued that Justice Scalia, until a turn to a dogmatically positivist version of textualism surprisingly late in his career, was by and large a champion of the classical view that rational coherence necessarily plays a role in the interpretation of legal texts. Law, including positive law, is by its nature and the nature of the lawmaker’s office presumed to be reasonably ordered to the public interest or common good.1

The first exchange on these themes went as follows (with specific mention of Justice Scalia in bold):

JUSTICE ALITO: General, can I take you back to the Chief Justice’s question about the specific exceptions to birthright citizenship that everybody seems to agree were recognized under the common law. And it brings up an important principle about how we interpret the law. When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up? Justice Scalia had an example that dealt with this situation. He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven, and then afterwards someone is charged with a crime of stealing a microwave oven. And this -- this fellow says: Well, I can’t be convicted under this because a microwave oven didn’t exist at that time. And he dismissed that. There’s a general rule there and you apply it to future applications. And what we’re dealing with here is something that was basically unknown at the time when the Fourteenth Amendment was adopted, which is illegal immigration. So how do we deal with that situation when we have a general rule?

GENERAL SAUER: Yeah, I strongly agree with the way that you framed it that there is a general principle that’s a broad principle that’s adopted in the phrase “subject to the jurisdiction thereof.” And we submit that our theory of allegiance, domicile-based allegiance, is what explains those specific exceptions that everybody was aware of, but it is broad enough to sweep in future situations. And, as you pointed out, illegal immigration did not exist then…. Now that logic we say naturally extends. It’s really an a fortiori case. If you have someone who enters illegally by the 1880s, there are restrictions on immigration. If you’ve entered illegally, it’s kind of, you know, a well-established principle of law going back to the Code of Justinian that says you’re not allowed to be there, you cannot -- you don’t have the legal capacity to create domicile there.

The second exchange involved the problem of extensive “birthright tourism,” beginning with the Chief Justice asking the Solicitor General whether “you do agree that that has no impact on the legal analysis before us?” The colloquy went as follows:

GENERAL SAUER: I think it’s -- I quote what Justice Scalia said in his Hamdan dissent, where they had -- where, like, their interpretation has these implications that could not possibly have been approved by the 19th century Framers of this amendment. I think that shows that they’ve made a mess -- their interpretation has made a mess of the provision.

CHIEF JUSTICE ROBERTS: Well, it certainly wasn’t a problem in the 19th century.

GENERAL SAUER: No, but, of course, we’re -- we’re in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a -- a child who’s a U.S. citizen.

CHIEF JUSTICE ROBERTS: Well, it’s a new world. It’s the same Constitution.

(Laughter.)

GENERAL SAUER: It is. And, as Justice Scalia said, I think, in the case that Justice Alito was referring to, you’ve got a constitutional provision that addresses certain evils and it should be extended to reasonably comparable evils. He said that about statutory interpretation. I think the same principle applies here, and I think we quote that in our brief.

Despite the Chief Justice’s rather demagogic laugh line here, which drew much applause from opponents of the administration’s position, the idea that the Solicitor General rightly attributes to Justice Scalia — that constitutional provisions should be read to extend to, but only to, “reasonably comparable evils” — is one that the Chief Justice himself has championed elsewhere, most recently in the Rahimi case. (Pete Patterson recently made the same point here). In Rahimi, the Chief Justice wrote that the Second Amendment must be interpreted by reference to “the principles that underpin our regulatory tradition…. Discerning and developing the law in this way is a commonplace task for any lawyer or judge.” It may be “the same Constitution,” but the principles embodied in that Constitution apply differently to different circumstances, and the judge’s task is development of doctrine in light of the relevant principles and circumstances. And, the Chief Justice then added, the law must not be understood as “trapped in amber.”

I very much look forward to hearing how the Chief Justice squares his position on birthright citizenship with his opinion for the Court in Rahimi. More generally, I hope that the Court’s eventual opinion faces up to the task of offering a reasoned and coherent account of the legal applications of the text, rather than insisting dogmatically and implausibly that “subject to the jurisdiction thereof” just means what it means.

Share

Share

I have updated my draft of Proprius Effectus Legis: Saving Substantive Canons and Presumptions Through a Presumption of Legislative and Executive Morality on SSRN. I wrote previously about the paper here, very briefly, but wanted to follow up to highlight some aspects of the paper given both that it is quite long, and given my recent presentation of the paper at the Center for Law and the Human Person’s Fourth Spring Symposium, “Now We Know That the Law is Good: On Law and Virtue” held March 26-27 at Catholic University of America’s Columbus School of Law. My sense was that the paper was well received, and I’m grateful to the participants in the symposium for their comments and insights.

Today, I wanted to focus on what might be the most controversial contention of the paper, and that is a classical defense of the “presumption of regularity.” Below I have shortened and summarized certain parts of the paper on this issue, proceeding as follows: (I) What is the Presumption of Regularity? (II) Recent Attacks on the Presumption; and (III) A Classical Defense of the Presumption. I hope you enjoy.

I. What is The Presumption of Regularity?

Courts have long applied certain presumptions when adjudicating executive action, such as the presumption of regularity.[1] The doctrine, applicable to things from administrative decision-making to prosecution decisions, is “longstanding” and is one, traditionally, the Courts “do not lightly discard, given [the] position that judicial intrusion into executive discretion of such high order should be minimal.”[2] As Professors Gavoor and Platt have skillfully documented, the presumption is wide reaching, lacks any “particular unified conception” within the federal judiciary, and is “a multidimensional deference principle with un-demarcated boundaries.” But “at minimum,” it has been understood to include the presumption that: (i) a public official has the authority to act; (ii) a public official performed an official act; (iii) a public official performed an official act completely and lawfully.; (iv) an agency acted reasonably; (v) an agency has produced a complete administrative record; (vi) an agency’s reasons for action are not ad hoc and are associated with the existing administrative record; (vii) on the admission of the government’s evidence (e.g., certain intelligence reports are presumed accurate; chain of custody is intact; foreign records are authentic); (viii) the President made due inquiry into the facts and formed a reasonable judgment thereupon; (ix) agencies, in certain contexts, are correctly interpreting the law; (x) an agency which has “voluntarily ceased” its challenged conduct will not resume the conduct, and thus has mooted the action; and (xi) a prosecutor is not committing unconstitutional selective prosecution.[3]

II. Recent Attacks on the Presumption of Regularity

A recent string of judicial decisions against various actions by the Trump Administration have taken a strident view against the presumption, some even declaring it has now been forfeited (perhaps indefinitely). One court has pointedly remarked, “Generations of presidential administrations and public officials have validated this underlying premise of the presumption of regularity: their actions writ large have raised little question that they act ‘in obedience to [their] duty.’ Over the last six months, however, courts have seen instance after instance of departures from this tradition.”[4] That court concluded, “[T]he President of the United States may have forfeited the right to such a presumption of regularity.”[5] Another held, “[T]he Court will not apply any presumption of regularity to conduct that is so unusual and therefore irregular on its face.”[6] Another: “Blind deference to the government? That is no longer a thing. Trust that had been earned over generations has been lost in weeks.”[7]

Traditionally, one could understand the presumption to operate as follows (in certain contexts, at least): If Congress passes a law giving the President discretion to do X when Y obtains, we presume that the President is the sole judge of when Y has obtained.[8] But if we think about this as a textualist, we might conclude that this has unjustifiably imposed an extra-textual value onto the statute (or at least, it is choosing to impose a certain interpretation of the balance of power between Articles II and III in a particular, contestable, way). Mightn’t we simply ask, does the fairest reading of the text indicate that the President is the sole judge of Y (a different way of configuring the power balance between Articles II and III)? And it turns out, courts who have become skeptical of the presumption of regularity have been reconfiguring the canon along those terms.[9] If Congress does not always intend for the President to be the sole judge of Y, then why assume so to begin with? Or, if the Executive does not always act with the purest and most public spirited motives, why assume it has done so when carrying out its responsibilities under law? Some prominent commentators and scholars have publicly called for the total abolishment of the presumption of regularity entirely.[10] And, as other scholars have pointed out, these “irregularities” by the Executive are not ones that can be exclusively assigned to one party.[11] Is the answer, to discard these longstanding presumptions in both interpretation and executive-facing adjudication?

III. A Defense of the Presumption of Regularity

A. The Proprius Effectus Legis

Law is necessarily teleological on the classical understanding. It is concerned with ultimate ends, goals, purposes, revealed through reason in the nature of man. Put simply, as Aquinas states, “the proper effect of law is to make those to whom it is given, good [proprius effectus legis sit bonos facere eos quibus datur].”[13] For those in the classical tradition, “man has a natural aptitude for virtue,” yet obviously needs external aid to achieve this natural end, and it is “this kind of training … which is the discipline of the laws.”^[14] When people are “perfect in virtue” it makes them “the most noble of animals,” yet if “severed from law” they become “the lowest of all.”^[15] And while some “are inclined to acts of virtue,” whether it be through “good natural disposition,” or “custom” or “paternal training,” requiring only mere “admonitions” to obtain virtue,^[16] others are “depraved,” “prone to vice,” “not easily amenable to words,” and as such need “to be restrained” “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.”^[17] As Isidore states, “laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm.”^[18]

Recognizing that this idea is contestable, Aquinas puts forward several objections—objections that, in the main, still seem relevant today—to the thesis that law’s nature is to make men good. For instance, he objects that virtue is something that comes from God, and thus human laws cannot make men virtuous (that is, virtue is an internal disposition, and cannot be coerced externally). He also objects that law can only have the function of making someone good if they obey it, but obedience to law presupposes the subject is good (good people obey law), so the law did not make the man good in the first place. Next, he objects that law is principally ordered to the common good, but some men behave well in regard to public matters while acting badly themselves in private ones, therefore it isn’t law that makes men good, at least as to private matters. And lastly, he points out that some laws are tyrannical, made not for the good of the people but the sole gain of the tyrant, and thus, at least categorically, law cannot make men good (because some laws have bad intentions, not oriented to the good).^[19]

Understanding Aquinas’s responses to these objections can help us appreciate more fully the importance of the telos of law, its proper effect, in the realm of interpretation.

First, Aquinas reiterates the metaphysical-moral premise of his (and Aristotle’s) worldview as it pertains to law: “the intention of every lawgiver is to make good citizens.”[20] But we need to be careful, because Aquinas uses “good” (like Aristotle) here in two ways: in the strong sense as to the correct content of the good, but also in a thin or weak sense, in which good is merely a particular end (much the same as when Aquinas discusses synderesis). He unpacks both senses when elaborating on this argument. The virtue or excellence or “good” of “any subordinate thing consists in its being well subordinated to that by which it is regulated.”[21] A well-regulated militia, is one that is properly and proportionality subordinated to the rules governing militias. A good citizen is one who is well and properly subjected to the community in which that citizen lives. And so forth. Law is a rule and measure of human conduct, inherently connected to reason and the common good. “[E]very law aims at being obeyed by those who are subject to it,” and thus, “the proper effect of law is to lead its subjects to their proper virtue: and since virtue is ‘that which makes its subject good,’ it follows that the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect.”[22] To be good “simply” means when the “lawgiver is fixed on the true good, which is the common good regulated according to Divine justice.”[23] There, “the effect of the law is to make men good simply.”[24] “If, however, the intention of the lawgiver is fixed on that which is not simply good, but useful or pleasurable to himself, or in opposition to Divine justice; then the law does not make men good simply, but in respect to that particular government. In this way good is found even in things that are bad of themselves: thus a man is called a good robber, because he works in a way that is adapted to his end.”[25] In this way, Aquinas can truly say, albeit carefully and precisely, that yes, in fact, law’s proper effect is always to make men good in some sense by conforming men’s actions to a certain rule and measure.

Second, Aquinas dispatches the four objections in both complex and pragmatic ways. For instance, virtue can indeed be “infused” (even Divinely), but it can also be acquired to some degree.[26] Being accustomed to an action, he observes, contributes to virtue in both ways, both by disposing one to infused virtue and preserving and fostering virtue when it already exists. “And since law is given for the purpose of directing human acts; as far as human acts conduce to virtue, so far does law make men good,” which is why Aristotle comments that “lawgivers make men good by habituating them to good works.”[27] On the issue of obedience to law, he observes that such obedience is often the product of “fear of punishment, and sometimes from the mere dictates of reason,” rather than “perfect goodness of virtue,” yet this is a “beginning of virtue,” a way of disposing people to virtue.[28] No one would contend that a man is less virtuous because, as child, he learned through fear of his parents to obey, until, through habituation in virtue, he came to obey law (properly speaking) for its own sake. Regarding the common good, relying Augustine, Aquinas emphasizes that “every man is part of the state,” and it is “impossible that a man be good, unless he be well proportionate to the common good: nor can the whole well consistent unless its parts be proportionate to it.”[29] On this view, Aquinas is simply being a realist: “the common good of the state cannot flourish, unless the citizens be virtuous, at least those whose business it is to govern. But it is enough for the good of the community, that the other citizens be so far virtuous that they obey the commands of their rulers.”[30] Finally, Aquinas addresses the “tyrannical law” in ways that should sound familiar at this point, although his argument is technical, preserving the ability to say that law is, in all cases, aimed at some end under the aspect of the good. “A tyrannical law, through not being according to reason, is not a law, absolutely speaking, but rather a perversion of law; and yet in so far as it is something in the nature of a law, it aims at the citizens’ being good. For all it has in the nature of a law consists in its being an ordinance made by a superior to his subjects, and aims at being obeyed by them, which is to make them good, not simply, but with respect to that particular government.”[31] Of course, what we want is for the correct content of the good such that laws make men good simply, rather than only particularly and thinly. And in the latter cases, the classical tradition has metaphysically informed interpretive tools at its disposal, as discussed above in Part II.B. But when the classical tradition speaks of “law” proper, it is easy to see why Aquinas can say, the intention of every lawgiver is to make men good. Only when we depart from what the classical tradition meant by law does the idea that lawgiver always intend the good break down.

The classical tradition thus gives us an unavoidably moral and teleological conception of the nature of law, and with it, a corresponding theory of interpretation of the law. It should be understood according to its nature, including its rational nature, service of the common good, and proper effect of serving as a rule and measure to conduce to virtue, to man’s temporal end of eudamonia, living in accordance with his nature according to reason.[32] Nor is this classical conception alien to the American tradition.[33]

B. The Presumption and The Proprius Effectus Legis

The presumption of regularity is rightly applied to executive officials as magistrates of the law, because their role in the enforcement of law implies the same kind of virtuous aptitude that the proprius effectus legis does with respect to the legislator. When the magistrate (or his subordinates) acts to enforce the law, he does so for the common good, with the proprius effectus legis in mind, acting to promote virtue and punish evil insofar as those actions promote the common good.

The connection between the execution of the law and the law’s proper effect has long been emphasized in the classical tradition. Justinian noted in his Institutes that it was necessary that “Imperial Majesty should not only be graced with arms but also armed with laws, so that good government may prevail in time of war and peace alike.”[34] In this way “[t]he head of the Roman state” would triumph not just militarily abroad, “but also over trouble-makers, driving out their wickedness through the paths of the law.”[35] The law must have someone who “actually effect[s]” it, and who “administer[s] the laws,” whether that power was in the King (pre-Republic) or later in the “magistrates.”[36] The Roman consuls were so called, because in their “supreme authority” “they first and foremost consulted the interest of the commonwealth.”[37] The Roman praetors filled the role of “the living voice of the jus civile,”[38] and even the Emperor’s authority was understood as operating under or as a consequence of the lex regia, “because the populace commits to him and into him its own entire authority.”[39] The power of “imperium” or “potestas” included “the power of the sword to punish the wicked.”[40] Indeed, the connection between the magistrate and the law is so tight that we see the rise of the maxim that the princeps (later applied to the Pope) has “omnia iura in scrinio pectoris sui” or roughly, the whole law in his breast.[41] This evocative imagery, when contextualized with the principle that the law’s proper effect is the inculcation of virtue in its subjects for the common good, helps clarify why it is, when assessing the Chief Magistrate’s or his subordinates’ execution of the law, we assume that they have carried out that duty faithfully. That is the telos of the executive, to be the living voice of the law’s proper effect.

These concepts were inherited by and translated into the common law system, with Bracton applying this principle to the King (with slight modification), saying that the king has omnia iura in manu sua,[42] and further more, it follows, as Bracton elsewhere points out, “Nemo quidem de factis suis praesumat disputare, or, No one may dispute his deeds.[43] While this latter point is often connected with broader concepts of the origins of sovereign immunity,[44] it is not hard to see its relation to what we later call the presumption of regularity in its admittedly modified and more modest form, lacking some of the absolutism of previous eras. While the application of the canon has spread in various ways to areas far afield of executive action,[45] the canon in the form of “Omnia praesumuntur legitime facta, donec probetur in contrarium,”[46] has long featured in the antecedents to American law regarding executive behavior. “[W]here acts are of an official nature or require the concurrence of official persons, a presumption arises in favor of their due execution. In these cases the ordinary rule is, Omnia praesumuntur rite et solemniter esse acta done probetur in contrarium,” including “credit [being] given to public officers who have acted prima face within the limits of their authority, for having done so with honesty and discretion.”[47]

Our Constitution, of course, vests Executive power in a President, who is aided by numerous officers to, among many other important things, “take Care that the Laws be faithfully executed.”[48] Whether one ascribes to a “Unitary” theory of the Executive or not is beside the point and I do not see this defense as hinging on which side of that longstanding debate one lands on. Under our Constitution, the law enacted by Congress is to be executed by executive branch officials, including the President who sees that this is faithfully done. And with the proprius effectus legis in mind, along with the principles undergirding the presumption of regularity—that the magistrate has the whole law in his breast—we can appreciate why we rightly presume the faithful execution unless shown otherwise.

Thus, we see, early on in American history, an attitude of high deference to the Executive when the particular matter has been committed to the President (either constitutionally, or by law). Justice Spencer, in the Supreme Court of New York, applied this principle to exclude prying into the decision-making of the President to call forth the state militia under a statute authorizing him to do so.[49] This case, of course, was then relied on by Justice Story when the issue was raised in the famous U.S. Supreme Court case of Martin v. Mott.[50] There, Justice Story emphasized the breadth of the power therein given to the President, and held “Whenever a statute gives discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statutes constitutes him the sole and exclusive judge of the existence of those facts.”[51] In other words, “When the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and, a fortiori, this presumption ought to be favourably applied to the chief magistrate of the Union.”[52] While he did not invoke the Latin name, it is certain Story knew what he was referring to, as he would, just a few weeks later in Bank of United States v. Dandridge,[53] reiterate the principle (in a different context) that “[the law] presumes that every man, in his private and official character, does his duty, until the contrary is proved; it will presume that all things are rightly done, unless the circumstances of the case overturn his presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donec probetur in contrarium.”[54] That we view our Chief Executive and his subordinates in this way is unsurprising on the classical view. Indeed, while our system separates powers (unlike the classical monarchy, for instance), our most celebrated decision on Presidential power bluntly recognizes that “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum…. In these circumstances, and in these only, may he be said … to personify the federal sovereignty.”[55] Accordingly, actions taken in that capacity are “supported by the strongest presumptions and the widest latitude of judicial interpretation and the burden of persuasion would rest heavily upon any who might attack it.”[56] At least in those circumstances, the President holds the whole of the law in his breast, and, in our own way, we might echo Bracton: Nemo quidem de factis suis praesumat disputare.

But what do we make of the presumption in light of recent calls to diminish, abolish, or render it forfeit due to findings of alleged misconduct by the Executive?[57] I take these positions to be mistaken, and ones lower courts ought to use more judgment on before calling into question a legal principle older than our Nation itself.

First, at times, lower courts grossly misstate the presumption—to the point of a straw man—presumably to give their opinions rhetorical force. This accomplishes nothing useful. And it seems likely harmful for the future administration of the law and thus the common good, eroding respect for the judicial office and at least at times unfairly maligning the Executive as well.

Consider one federal judge’s order in response to an invocation of deference of unsealing warrant materials: “Blind deference to the government? That is no longer a thing.”[58] At what point did courts ever treat the presumption of regularity as “blind deference” in our system? The answer is never. So it is not “no longer a thing;” it never was a thing. Nor did the government characterize the request in that way. By the court’s own admission, the government merely argued that “courts must be highly deferential to the government’s determination that unsealing would impede an investigation.”[59] One could hardly blame the government for such an assertion given that relevant circuit precedent acknowledged such deference in a similar case.[60] That the district court distinguished that case as having left the particular issue open (essentially meaning the district court was deciding an issue of first impression) is hardly a basis for castigating the government as “mischaracterize[ing] [the] case” and inserting a lengthy footnote based on news reports to substantiate the court’s rather intemperate remarks on the presumption of regularity.[61]

Unfortunately, this decision was then relied upon by another federal district court judge in similarly declaring, after a litany of quotes from various cases against the Trump administration, “the President of the United States may have forfeited the right to such a presumption of regularity.”[62] But relying on lower court decisions to call into question the presumption for the Chief Magistrate of the country seems obviously perilous. Clipping a pithy phrase from another district court—“Defendants want the Court to either declare that nine Presidents and twenty-one Congresses did not properly understand the separation of powers, or ignore how the executive branch is implementing large-scale reductions in force and reorganizations”—may make it sound like the court is cataloguing executive abuses to supports its views on the presumption of regularity,[63] but of course this does not account for the fact that the Supreme Court (8-1) then stayed the district court’s order, finding that the relevant memorandum and Executive order were “likely” to be “lawful” on review.[64] Other district court opinions, again, relied on as evidence for removing the presumption of regularity by other courts, boisterously declared that the President removing an agency official, in keeping with the President’s view that Congress cannot inhibit his removal authority under Article II, is akin to “autocracy” and “threaten[s] to upend fundamental protections in our Constitution.”[65] However one ultimately feels about the President’s removal power, the idea that the President cannot be constitutionally inhibited from removing officers is certainly a mainstream idea and hardly any endorsement of autocracy, the court’s rhetoric notwithstanding.

A number of the instances lower courts cite for either overriding or even threatening to remove the presumption of regularity are little more than lower court judges ruling against the Administration on the merits (sometimes very contestably so) and using inflammatory language (unadvisedly) while doing so. One could be mistaken for characterizing some of the judicial attacks on the presumption of regularity as the downside of having judges at all (according to Aquinas), i.e., that they may be “affected by” certain passions that corrupt their judging faculties.^[66] Surely, the prudent and judicious course of action is not to abandon the presumption or call it into question forever (after all, it applies to an office not a person), but to simply apply it. If it is overcome, then that can be reviewed and a court with appellate jurisdiction can weigh in. But hastily cataloguing rhetorical posturing of lower court judges seems as far as a rational basis for jettisoning a millennia-old legal presumption as there might be. At minimum, it fails to accord the proper respect that is rightfully owed to the Executive Branch, as the branch who holds the whole law in its breast.

Second, an additional problem of this presumption-of-regularity litigation has been a tendency to trim the presumption of features it has traditionally held. This aggrandizes judicial power in a way that is imprudent and threatens even potentially disastrous consequences to the common good.

For example, one federal district court has read the presumption to not have any import to the question of whether the law has confided a particular matter to the President’s discretion, but rather, applying only once the court has determined that the law gives the choice to the President.[67] This move feels rather consistent with a textualist approach, as noted above. After all, if the presumption of regularity is imposing some particular extra-textual policy, then the textualist approach would suggest simply reading the act to determine whether the matter has in law been committed to the President. In support of that position, the court cited Martin v. Mott. Yet Mott seems to have addressed and rejected that very argument, for good reasons (at least if we consider the issue from the classical perspective).

The plaintiff there argued that, even if it were the case that the judgment of the President about the “existence of [an] exigency” lie with the President under the statute, the power to declare such an exigency “can be exercised only in the cases pointed out in the statute, and therefore it is necessary to aver the facts which bring the exercise within the purview of the statute.”[68] In other words, if the statute says the President gets to do X when Y, the court has to ensure that Y in fact happened. The Court was not moved. Why? The President is “presumed to possess” “high qualities,” “public virtue,” and “honest devotion to the public interests.”^[69] His very role is to take care that the law be faithfully executed, to promote the common good as Congress has identified it, including making emergency judgment calls when necessary under such statutes. Nor was Justice Story moved by the argument that “such a power may be abused, for there is no power which is not susceptible of abuse.”^[70] The remedy for the abuse of such matters is political: “the watchfulness of the representatives of the nation” and “frequency of elections” are the “guard against usurpation and wanton tyranny.”^[71] The common good would be significantly hindered, if not destroyed, by the inability of the President to respond to emergent conditions. And, if the law has granted the President the authority to act, he is the “personif[ication] of the federal sovereignty.”[72]

Many scholars and commentators believe, for example that the current scope of discretion given to the President under the Insurrection Act is too broad, and dangerously so.[73] I personally do not share that view. But there seems to be a strong consensus that the Insurrection Act does grant exceptionally broad authority to the President, a discretion the judiciary has recognized, and multiple Presidents have invoked, on many occasions.[74] Once Congress enacts a law that gives the President discretion to make emergency judgments, the presumption of regularity indeed has a role to play, insulating the President’s judgment as was the case in Mott. The primary determiners of the common good in our constitutional order are Congress and the President. The Judiciary’s role is, at least in theory, much more modest. But if the question of whether the statute has granted the President authority to do X if Y happens is made a primarily a judicial one, without a presumption of regularity in favor of the President, then one could fairly wonder whether Congress and the President really occupy the role as prime determiners of the common good’s requirements in our political order. If the judiciary miscalculates the relevant facts and circumstances, the consequences could be disastrous. The judicial branch truly exercises neither force nor will, only judgment,[75] and it should act accordingly.

The proprius effectus legis is effectuated by the actions of the Executive branch, bringing to life the virtuous commands of the law. This is why we presume the regularity of the executive branch’s motives and even the baseline lawfulness of its behavior. To be sure, it is only a presumption, a strong one, but vital.

This is a slightly different account of how Articles II and III ought to interact with one another, but one I think rightly rooted in American law, even if at times overlooked. For reasons Professors Sunstein and Vermeule have explained (in their great book, Law and Leviathan), our legal discourse is often hyper-focused on an adversarial view of the branches of government. To be sure, such an adversarial view is, at least partially, baked in. The Framers were explicit about such features, checks and balances, in our Constitutional system, and the concerns that animated them. Yet, these features can often blind us to other important, even more important goals the Framers envisioned: the common good, good and effective government, and good and virtuous government and citizenry. I will not belabor the point, but for various reasons, we often get hung up or obsess over a more myopic and proceduralist view of our federal structure. This is a mistake.

The Federalist Papers’ authors put significant weight on concepts like the common good and a working governmental structure. As Madison argued in Federalist No. 57, “the aim of every political constitution is or ought to be, first, to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and next place, to make the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” The structural protections of our constitution, its checks and balances, are serving the end of virtue preservation, they are not ends in and of themselves. “[T]he true test of a good government is its aptitude and tendency to produce a good administration.” Federalist No. 68 (Hamilton). And “the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and … no form of government whatever has any other value than as it may be fitted for the attainment of this object.” Federalist No. 45 (Madison).

The classical tradition envisions the ends of government, including all the constituent roles of our three branches of the Federal Government, as ordered to substantive ends like peace, justice, abundance, health, safety, welfare, and morals, all constituents of the common good. The proprius effectus legis, apart from its implications for how the judiciary approaches substantive canons and presumptions, helps orient all three branches of the government to these ends. Each branch makes certain virtuous presumptions about the others because that is essential to the very nature of the political project. To echo Justice Robert Jackson, while “the Constitution diffuses power to better secure liberty” (among other things), “it also contemplates that practice will integrate the dispersed powers into a workable government,” “enjoin[ing] upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The proprius effectus legis can help us keep that holistic vision of our constitutional order in sight, for the common good, including in how we presume the rightness of the actions of Article II.

Subscribe now

Share

[1] See, e.g., Martin v. Mott, 25 U.S. 19, 32-33 (1827) (Story, J.); Polk’s Lessee v. Wendell, 18 U.S. 293, 295, 5 L. Ed. 92 (1820); Hartwell v. Root, 1822 WL 1629 (N.Y. Sup. Ct. 1822) (citing English common law precedents); see also Note, The Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L. Rev. 2431 (2018) (discussing some of the history of the doctrine).

[2] Hartman v. Moore, 547 U.S. 250, 263 (2006).

[3] Aram A. Gavoor & Steven A. Platt, In Search of the Presumption of Regularity, 74 Fla. L. Rev. 729, 748 (2022). Gavoor and Platt include others related to the judiciary, Congress, agency interpretations, and discovery related issues that I have omitted here.

[4] Fed. Educ. Ass’n v. Trump, No. CV 25-1362 (PLF), 2025 WL 2355747, at *10–11 (D.D.C. Aug. 14, 2025) (citing J.O.P. v. United States Dep’t. of Homeland Sec., Civil Action 25-1519, 2025 WL 1431263, at *10 (4th Cir. May 19, 2025) (Gregory, J., concurring); President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., ––– F.Supp.3d ––––, ––––, 2025 WL 1737493, at *17 (D. Mass. June 23, 2025); In re Search of One Device and Two Individuals under Rule 41, Search Warrant No. 25-0082 (ZMF), ––– F.Supp.3d ––––, –––– n.10, 2025 WL 1587917, at *14 n.10 (D.D.C. May 29, 2025); Washington v. Trump, Civil Action No. 25-0127 (JCC), Verbatim Report of Proceedings (W.D. Wash. Jan. 24, 2025) [Dkt. No. 53] at 13:13-15; New Hampshire Indonesian Cmty. Support v. Trump, 765 F. Supp. 3d 102, 109 (D.N.H. 2025); Wilmer Cutler Pickering Hale and Dorr LLP v. Executive Office of the President, 774 F. Supp. 3d 86, 89 (D.D.C. 2025); Pacito v. Trump, Civil Action No. 25-0255 (JNW), 2025 WL 1295660, at *2 (W.D. Wa. May 5, 2025); Associated Press v. Budowich, Civil Action No. 25-0532 (TNM), ––– F.Supp.3d ––––, ––––, 2025 WL 1039572, at *10 (D.D.C. April 8, 2025); Perkins Coie LLP v. U.S. Dep’t. of Justice, Civil Action No. 25-716 (BAH), ––– F.Supp.3d ––––, ––––, 2025 WL 1276857, at *1 (D.D.C. May 2, 2025); Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113, at *7 (4th Cir. Apr. 7, 2025) (Wilkinson, J., concurring); United States v. Adams, 777 F. Supp. 3d 185, 192 (S.D.N.Y. 2025); LeBlanc v. United States Priv. & C.L. Oversight Bd., Civil Action No. 25-542 (RBW), ––– F.Supp.3d ––––, ––––, 2025 WL 1454010, at *35 (D.D.C. May 21, 2025); D.B.U. v. Trump, Civil Action No. 25-1163 (CNS), ––– F.Supp.3d ––––, ––––, 2025 WL 1304288, at *4 (D. Colo. May 6, 2025); Ziliang J. v. Noem, Civil Action No. 25-1391 (PJS) (DLM), 2025 WL 1358665, at *2 (D. Minn. Apr. 17, 2025); Widakuswara v. Lake, 779 F.Supp.3d 10, 35 (D.D.C. 2025); Jenner & Block LLP v. U.S. Dep’t of Just., Civil Action No. 25-0916 (JDB), ––– F.Supp.3d ––––, ––––, 2025 WL 1482021, at *10 (D.D.C. May 23, 2025); Abrego Garcia v. Noem, 348 F.R.D. 594, 601 (D. Md. 2025); Maine v. U.S. Dep’t of Agric., 778 F. Supp. 3d 200, 231-32 (D. Me. 2025); League of United Latin Am. Citizens v. Exec. Off. of the President, Civil Action No. 25-0946 (CKK), ––– F.Supp.3d ––––, ––––, 2025 WL 1187730, at *27 (D.D.C. Apr. 24, 2025); Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, 763 F. Supp. 3d 36, 50 (D.D.C. 2025); Grundmann v. Trump, 770 F. Supp. 3d 166, 171 (D.D.C. 2025); American Fed’n of Gov’t. Emp. v. Trump, 139 F.4th 1020, 1033 (9th Cir. 2025); Rona v. Trump, Civil Action No. 25-3114 (JMF), 2025 WL 2162543, at *7 (S.D.N.Y. July 30, 2025); CASA, Inc. v. Trump, No. 25-1153, 2025 WL 654902, at *2 (4th Cir. Feb. 28, 2025); Am. Fed’n of Gov’t Emps., AFL-CIO v. U.S. Off. of Pers. Mgmt., 777 F. Supp. 3d 253, 281 (S.D.N.Y. 2025); Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, Civil Action No. 25-3698 (SI), 2025 WL 1482511, at *2 (N.D. Cal. May 22, 2025).

[5] Fed. Educ. Ass’n v. Trump, 2025 WL 2355747, at *10–11.

[6] President & Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Sec., ––– F.Supp.3d ––––, ––––, 2025 WL 1737493, at *17 (D. Mass. June 23, 2025).

[7] In re Search of One Device and Two Individuals under Rule 41, Search Warrant No. 25-0082 (ZMF), ––– F.Supp.3d ––––, –––– n.10, 2025 WL 1587917, at *14 n.10 (D.D.C. May 29, 2025).

[8] See Martin v. Mott, 25 U.S. 19, 32033 (1827) (Story, J.).

[9] See League of United Latin Am. Citizens v. Exec. Off. of the President, 780 F. Supp. 3d 135, 175-77 (D.D.C. 2025).

[10] For instance, Clark Neily, a Senior Vice President at the Cato Institute, recently posted on X “If you’re a judge who has ever granted the government a ‘presumptoin of regularity,’ you should be deeply shamed for failing to properly do your job. Not just this administration, but NO govt entity of any kind has ever been entitled to such a baseless presumption. For shame.”

. Professor Ilya Somin, someone at least textualist adjacent, see Ilya Somin, A Textualist Defense of the Major Questions Doctrine , Reason (Mar. 1, 2023), https://reason.com/volokh/2023/03/01/a-textualist-defense-of-the-major-questions-doctrine/, reposted adding simply “Agreed.”

. Professor William Baude and Samuel Bray have also recently written an article contending for the application of the “unclean-hands” doctrine to the Executive, see When the Executive has Unclean Hands, 135 Yale L.J. Forum (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5680222, which is a position close to one inviting open scrutiny of executive action contrary to the presumption of regularity traditionally afforded the Executive.

[11] See, e.g., Jack Goldsmith, The Biden White House’s Violations of Justice Department Independence Norms, Lawfare (Feb. 12, 2024), https://www.lawfaremedia.org/article/the-biden-white-house’s-violations-of-justice-department-independence-norms.

[12] I am not, here, necessarily taking sides on the on-the-ground facts behind any of the particular executive “irregularities” to which courts and commentators have pointed in any of the last three Administrations.

[13] Thomas Aquinas, Summa Theologiae, I-II, q. 92, a.1.

^[14] Ibid.

^[15] Id., q. 95, a.1.

^[16] Ibid.

^[17] Ibid.

^[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Perhaps at this juncture, one might protest that this move sounds like the “naturalistic” or “is/ought” fallacy. Indeed, one could make that objection not only as to the move from the nature of law to the interpretative theory of the classical school, but for the entire thesis of this Article, as the Article is founded on Aristotelean-Thomistic ethics. I will leave the broader arguments to philosophers, but note only that, to my mind, the is-ought critique of Hume and others has long since been demonstrated to be erroneous. See, e.g., McCall, supra note 191, at 17-21, 76, 88, 136, 169, 279, 288, & 419; Augusto Trujillo Werner, Hume’s Law, Moore’s Open Question and Aquinas Human Intellect, 3 Argumenta 367, 368-73 (2018); Edward Feser, 27 Social Phil. & Pol’y 21, 22-29 (2010); Alisdair MacIntyre, Hime on “Is” and “Ought”, 68 Phil. Rev. 451 (1959). G.E.M. Anscombe, Modern Moral Philosophy 33 Philosophy 1 (1958); see also Joseph S. Spoerl, Hume’s Critique of Natural Religion: A Thomistic Response, 13 St. Anselm J. 82 (2017) (criticizing Hume more broadly, and noting that “Aquinas … anticipates many of the criticisms that Hume levels at natural theology, yet Hume shows little or no awareness of this fact.”).

[33] See Jeremy M. Christiansen, 76 Catholic Univ. L. Rev. ___, pp. 39-44 (forthcoming 2026), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5550598..

[34] Justinian’s Institutes, at 33 (Peter Birks & Grant McLeod, Transl., Latin Text by Paul Krueger) (1987)

[35] Ibid.

[36] Digest of Justinian Book 1, Part II. ¶¶ 13-16 (Pomponius) (Alan Watson, Transl.) (1985).

[37] Ibid.

[38] Id. at Book 1, Part II ¶¶ 7-8 (Papinian and Marcian).

[39] Id. at Book 1, part IV, ¶ 1.

[40] Id. Book 2, Part II 1.1.1, .3 (Ulpian).

[41] See, e.g., Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology 153-54 (2016); Gaines Post, Two Notes on Nationalism in the Middle Ages, 9 Traditio 281, 311 & nn.72-73 (1953).

[42] See id; see also Bracton, De Legibus et Consuetudinibus Angliae (166) (1286) (Woodbine ed. 1876)

[43] Bracton, supra note 42 at 33; see also Post, supra note 41, at 310-11 (connecting the Nemo quidem and the omnia iura maxims).

[44] See generally Edwin B. Borchard, Governmental Responsibility in Tort, 36 Yale L.J. 1 (1926). Notably, it should not be understood that this view saw the King as wholly above or outside the law—quite the contrary. See id. at 22-23; see also Kantorowicz, supra note 41, at 147-54. Indeed, Kantorwicz specifically connects and qualifies these maxims under Bracton with the concept of the King being ruled by God and law. See id.

[45] See Gavoor & Platt, supra note 3. I would note that the rationale behind the presumption as applied to executive action differs, materially, from the broader sweep of the presumption in ordinary private or corporate behavior, for example. I offer a defense here only of the former, with the latter being outside the scope of this Article.

[46] I Edward Coke, Institutes of the Laws of England, Bk. 3, Ch. 5, § 378, p. 232 (1670).

[47] Broom’s Legal Maxims 943-44 (1882).

[48] U.S. Const. art. II, § 3.

[49] Vanderheyden v. Young, 1814 WL 1139 (N.Y. Sup. Ct. 1814) (“It is a general and sound principle, that whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done, and, at the same time, contemplates that the act is to be carried into effect, through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is, quoad hoc, a judge.”).

[50] 25 U.S. 19, 31-32 (1827).

[51] Ibid.

[52] Ibid.

[53] 25 U.S. 64 (1827).

[54] Id. at 69-70.

[55] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636-37 (1952) (Jackson, J., concurring) (emphasis added).

[56] Id. at 637 (emphases added).

[57] See Part II, supra.

[58] In re Search of One Device & Two Individuals under Rule 41, 784 F. Supp. 3d 234, 245 (D.D.C. 2025).

[59] Id.

[60] See Times Mirror Co. v. United States, 873 F.2d 1210, 1214 (9th Cir. 1989) (“[T]the magistrate in granting the original sealing order and the district court in reviewing such orders have necessarily been highly deferential to the government’s determination that a given investigation requires secrecy and that warrant materials be kept under sea.”).

[61] See 784 F. Supp. 245 & n.10.

[62] Fed. Educ. Ass’n v. Trump, 795 F. Supp. 3d 74, 92 (D.D.C. 2025).

[63] Ibid. (quoting Am. Fed’n fo Gov’t Emps., ALF-CIO v. Turmp, 2025 WL 1482511, at *2 (N.D. Cal. May 22, 2025)).

[64] Trump v. Am. Fed’n of Gov’t Emps., 145 S. Ct. 2635 (2025).

[65] See 795 F. Supp. 3d at 91 (quoting Grundmann v. Trump, 770 F. Supp. 3d 166, 171 (D.D.C. 2025)).

[66] See Aquinas, supra note, 13, I-II q.95, a.1.

[67] League of United Latin Am. Citizens v. Exec. Off. of the President, 780 F. Supp. 3d 135, 177-78 (D.D.C. 2025).

[68] Martin v. Mott, 25 U.S. 19, 32033 (1827) (Story, J.).

[69] Ibid.

[70] Id. at 32.

[71] Ibid.

[72] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 (1952) (Jackson, J., concurring).

[73] For a short primer on the Insurrection Act as well as proposals for legislative reform to the Act, see Bob Bauer & Jack Goldsmith, Trump Threatens to Invoke the Insurrection Act: Background on This Dangerous Law and What is Needed to Fix It, Executive Functions (Jan. 15, 2026),

Executive Functions

Trump Threatens to Invoke the Insurrection Act

In light of President Trump’s threat this morning to “institute the INSURRECTION ACT,” we thought it might be useful to collect our main writings on the Act, its dangers, and reform poss…

Read more

5 months ago · Bob Bauer and Jack Goldsmith

.

[74] See id.

[75] Even the proponents of Insurrection Act reform do not propose a provision for judicial review, but counsel against it, noting other avenues of relief are available to address discrete issues under already existing law, including the guarantee of the writ of habeas corpus. See id.

A few weeks ago, Mr. Kieffaber engaged in a debate on this topic, organized by the Thomas More Society of America, with Mr. Nicolas McAfee at Hillsdale College (D.C.). A video of the debate is here. Enjoy!

Subscribe now

Share

As regular readers of this journal are well aware, Justice Oliver Wendell Holmes memorably stigmatized general common law as “the brooding omnipresence in the sky,” stemming from Natural Law’s influence on the then understanding of general common law, in a dissent from over 100 years ago. Despite the best efforts over the last century by American law schools and American elite opinion to remove Natural Law from the toolkit of lawyers and judges, the last several years have featured something of a renaissance of Natural Law in American law. Last October, a prominent speech delivered by Judge Andrew Oldham of the U.S. Court of Appeals for the Fifth Circuit at the Heritage Foundation was the latest example of this renaissance occurring, even if he only approached the threshold of embracing a jurisprudence of Natural Law.

Judge Oldham used the occasion of Heritage’s annual Joseph Story Lecture (YouTube video found here) to rehabilitate the opinion of Justice Story in Swift v. Tyson, the 1842 opinion now remembered foremost as the judicial precedent governing cases that arise under Article III courts’ federal diversity jurisdiction until the Supreme Court in Erie Railroad Company. v. Tompkins overruled Swift in 1938. Story’s opinion in Swift, as lawyers and law students may recall from Civil Procedure class, held that federal judges encountering suits arising from non-local matters involving parties from more than one state were free to consult “general common law” to resolve disputes. Precepts of “general common law” envisioned by Story in Swift included judicial decisions and customs governing commercial transactions. Natural Law was present in “general common law” as well. “The general law was typically rooted in widely followed customs and natural law or moral principles,” even if, according to one article in the NYU Law Review, it “often glossed over the question of where the general law came from, be it custom or natural law, as applying law without apparent authority did not pose an issue in a jurisprudential system that, before Erie, had not incorporated legal positivism.” Inherent in the judicial role was not a roving warrant to create new law but rather to recognize principles and customs across jurisdictions. In recognizing those principles and customs, law was found, not made.

In his remarks at Heritage, Judge Oldham sought to vindicate Story’s position against nearly a century of federal courts operating on the opposite presumption of making rather than finding law under the Erie precedent. Oldham compared the work of the pre-Erie judge to the work of social scientists employing scatterplot graphs to find “a line of best fit or trend line through the scatterplot of precedent” as Oldham put it. In an almost republican schoolmaster-esque development, after the Supreme Court in Erie instructed lower federal courts to make law in suits arising from non-local matters involving parties from more than one state, appellate courts absorbed this teaching and applied it in another context in their day to day work. As Judge Oldham explained, panels of appellate courts “make” law by a doctrine called “the rule of orderliness” wherein “The ruling of one panel binds all future panels unless and until it is overturned by the en banc court or the Supreme Court.” Judge Oldham criticized panels on these courts for mistakenly thinking that they were making law that would bind ex post the entire circuit, calling this practice “deeply inconsistent with the federal judicial function, which is to find the law in a scatterplot.” In rejecting “the rule of orderliness,” Judge Oldham argued that a single panel’s holding ought to be considered only one data point on the scatterplot graph because “general law is exogenous to any single judicial opinion…each of which is just evidence of the underlying law.” As far as this insightful observation reveals a suboptimal regular practice at the appellate court level, I agree.

But Judge Oldham did not stop there. Judge Oldham explained then that the Supreme Court’s early practice of seriatim opinion writing evinced how, to the judges of the Founding period, an underlying judgment was binding, but that the reasoning in the separate opinions was simply a collection of scatterplot data points for future courts to consider. “Each justice’s opinion was very important, but none of them purported to make or establish law. They simply explained how the various justices found the law.” Judge Oldham explained that the first Supreme Court justice appointed by George Washington, James Wilson, thought that as to “the parties in a case, judgments continue to be effective laws unless and until they were reversed. But in other parties’ cases, the judgments could only be considered as strong evidence of the law and thus it made perfect sense for him to look beyond legal precedent.”

Judge Oldham, like others including law professor Stuart Banner, the author of The Decline of Natural Law, traced the late 19th century’s judicial abandonment of finding law as well as its reticence to invoke “general common law” to an embrace of legal realism and the law declaration approach popularized by Holmes. The law declaration model relies on the understanding of law, in Holmes’s view, as “the articulate voice of some sovereign,” be it the legislature or even a court. The law declaration model screens out any external test of legitimacy, such as Natural Law, against which ultimate legal coherence or authority may be based.1 Erie, as reflecting the greatest extent of the legacy of Holmes, forestalls all such deliberation or dispute resolution by the co-equal political branches. “All that is required is for the courts to assert that, in their view, some statute is an improper infringement of some evolving or new-found right, as they see it (or even more obnoxiously, as they believe the people see it),” noted John Eastman in a 2005 article. But law declaration’s opposite, the law deliberation model, allows for the possibility that the other branches may bring forth counterarguments over ultimate constitutional coherence rooted in Natural Law.

Judge Oldham’s provocative lecture deserves praise for attempting to revive an interest among legal conservatives to an alternative jurisprudential approach from the dominant view still taught in law school, and espoused earlier by Holmes, that “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” In an ideal future, close-watchers will point to Judge Oldham’s lecture as the first significant attempt by a sitting judge to walk back from “the Holmesian-realist idea that judges make law” as Judge Oldham elaborated in a dissent from last November in Stanford v. Brandon Nursing, citing throughout the opinion to his Heritage lecture. But in this ideal future where countering the Holmesian approach is more frequent, we ought not settle for invocations of “general common law” that screen out the thick moral underpinnings that provide the underlying justification to why any law is rightly binding in the first place. In his silence or reticence to embrace fully the role of Natural Law in relation to “general common law,” Judge Oldham stands only on the threshold of a wholesale restoration of our jurisprudence within the classical legal tradition.

To be sure, Judge Oldham acknowledges Natural Law does have a role to play in his approach. The aforementioned John Eastman attended the lecture and asked Judge Oldham just what that role was during the question period. Judge Oldham replied that “[Principles of natural justice are] related but I don’t think they’re necessarily the same [as general common law]”, further elaborating that “we’re not making rules, we’re trying to find them.” In his further response to Eastman, Judge Oldham cited the example of Wilson. Oldham criticized Wilson’s ultimate result in Chisholm v. Georgia (1793) on sovereign immunity as an aberration from the scatterplot of the common law’s trend line but praised Wilson’s methodological approach of marshalling evidence of authorities within the common law tradition. Yet in this answer (which to be clear was the response to a question and not part of the judge’s prepared remarks), Oldham assumed that the bindingness of law rightly found by a judge (again, not made by a judge) derives from the act of associating data points serving as indicia of law. The scatterplot is Judge Oldham’s understanding of the legitimate range judicial measurement of those data points according to a discernible trend.

But why should discerning a trend on the scatterplot matter in the first place? And what principles govern the outer limits of the scatterplot? The answers to these two questions underscore the necessity of an underlying Natural Law framework to Judge Oldham’s endeavor of reviving the lost practice of judicial law finding. To be valid indicia of law, the datapoints on the scatterplot, frequently ranging over centuries, cannot be mere exertions of power, exercised for their own sake. These datapoints ought to reflect reasoned judgment. And so the inescapable question becomes one that Natural Law-scholar Hadley Arkes often invokes:

The key to the problem was a variant of the old question in Plato’s Euthyphro: was the old good because it was old, or had it become old because there was something about it enduringly good? Were those earlier laws to be respected because they were old or because they revealed an objective truth…that is fully as true now as it was then?

The construction of a discernible trendline according to Judge Oldham’s scatterplot thesis relies then on asking of each common law writ or judicial decision constituting a datapoint whether each datapoint still persuades according to the first principles of moral and legal justice. For a long time, the common law recognized the writ de excommunicate capiendo (to arrest a person who had been excommunicated by an ecclesiastical court and yet refused to obey the sentence) as well as the writ de heretic comburendo (a writ issued at the direction of the king for the burning of a heretic). But as Wilson commented in his famous Lectures on Law delivered while he was on the Court, with a certain degree of satisfaction: “from these parts [of the ancient common law] we are happily relieved: they are parts of the common law, which did not suit those who emigrated to America: they were, therefore, left behind.”

If one reads closely Wilson’s opinion in Chisholm, this very act of considering each datapoint within the larger frame of the Natural Law characterized Wilson’s approach. Certainly, Wilson cited historical authorities including Frederick the Great, Cicero, and Henri de Bracton. But it was to demonstrate Wilson’s underlying point that “The sovereign, when traced to his source, must be found in the man.” That underlying point is a precept of Natural Law derived from our natural equality. Only the positive law of the Eleventh Amendment, which followed the Court’s decision in Chisholm, could justly override such a principle true of necessity for prudential or practical purposes in the new American regime. In other words, one of the original originalists among the American Founders, James Wilson, showed that inherent in the judicial duty was a commitment to law finding with reference to ultimate values. And in doing so, Wilson was not making law but rather finding it.

Why would Judge Oldham object to Wilson’s ultimate holding while praising his methodology? To Judge Oldham, while Natural Law is a possible source of law that may be found, the underlying ground of legitimacy for the enterprise of law finding, at least as it is understood as an exercise of associating data points on a scatterplot graph, rests on a positivist foundation. Swift was right, as I understand Judge Oldham, because it assumes that unwritten law (be it common law, general law, or Natural Law) “might be a kind of social fact that ‘can be found, rather than made’—even within a purely positivist theory of law.”2 Under this conception, what Natural Law cannot be is a legitimate, first-order independent source of authority for a judge to find legal recourse to settle a dispute. In contradistinction, it cannot be a canon of interpretation to apply “where positive law is silent” as one section of the Louisiana Civil Code recognized and counseled state judges as recently as 1987.3

What constitutes the foundation of this positivist approach to law finding? Conservative lawyers in our own day, as a point of pride, have erected almost impermeable bright lines or barriers between law that has been enumerated and law that underlies enumerated text. Invocations to law that underlies enumerated text, such as precepts of natural justice, must be followed with string citations to historical authorities or better yet written judicial opinions that “bless” the relevance of those historical authorities. One such representative case is when Hadley Arkes recounted the story of the dean of Fordham Law who, after listening to a lecture of Arkes’s on the Founders employing Natural Law reasoning, asked him why the Founders rarely if ever talked about Natural Law. That dean hoped to place authoritative weight in the Founders making explicit invocations of “doing Natural Law.” In response Arkes’s friend, the late Oxford philosopher Dan Robinson twitted, “There wasn’t much discussion of the alphabet [at the Founding] either, but it ran through everything [they did].” With this positivist turn, the validity of the precept is not judged on whether it is self-evident but judged rather on whether someone historically in a position of power found that precept persuasive enough to enact or enumerate. In that sense, good judging has been conflated with legal positivism.

The foundation to Judge Oldham’s embrace of a positivist approach to law finding thus becomes clear. The most cited academic authority in Judge Oldham’s opinion in Stanford v. Brandon Nursing is Harvard Law’s leading positivist originalist, Prof. Stephen Sachs. In his influential 2019 law review article, Finding Law, Sachs argues that Erie’s great mistake is giving a bad name to the positivist enterprise by melding it with the command to make law formulaically from posited state laws relevant to the parties involved in the suit. Sachs validates the law finding exercise of Swift rather than the law making exercise of Erie, once again a commendable development. But judges, according to Sachs, engaging in law finding remain “in their lane” as good positivists only so long as they share Sachs’s view of law’s defining feature as the “separation of law and morals,” an expression espoused by noted positivist H.L.A. Hart as well as Holmes. Should it surprise us then that any legitimate exercise in finding law to Sachs rests on the premise that one is unable to draw an ought from an is?4

It is not news that many natural lawyers have disputed the premise that it is impossible to draw an ought from an is since time immemorial. In our own day both Hadley Arkes5 and Adrian Vermeule6 have shown the incoherence of such a premise. But what would come as news, particularly to Justice Holmes were he with us today, is that law finding of “general common law” could be done by eschewing a framework of Natural Law. Before the conflation of good judging with legal positivism, jurists such as Wilson and Story were compelled to trace their judgments back to underlying axioms true of necessity. And those judgments included a framework of Natural Law informing the “general common law.”

Similarly, we now see the unhealthy conflation of originalism with positivism, largely a conservative over-corrective from the excesses of the Warren and Burger Court eras. In his lecture, Judge Oldham absorbed much wisdom from the earlier approach to law finding and delivered an improvement to our jurisprudence, even if he swerved into this same over-corrective. However, another path exists. A talented young lawyer and legal scholar who died far too early, Holden Tanner, penned a series of essays in 2021 and 2022 anticipating the battle lines of this debate. Tanner recognized that conservative jurisprudence is at a crossroads. Conservative jurisprudence is divided over the question of how to consider the classical, common law tradition, which featured judges deciding cases by reasoning in good measure from Natural Law-premises outside the posited text at issue, against the modern fear of legal realist judges making law. Tanner offered this observation on the fault lines of the divide:

We have been woefully misled by the canard of “judge-made law.” Rather than viewing common law as a body of rules, it must be understood as a method of legal reasoning. A common law court does not simply make up law. We should instead see that they establish law from the general legal rules already made available through reason and tradition. To “establish” does not mean to create ex nihilo but rather to take what is general and amorphous and render it concrete. Courts establish law by giving it a concrete shape or definitive application. This is true even of judicial decisions applying written law. Establishing doctrine and determining applications does not make the judicial decision itself a source of law.

Substitute Tanner’s word choice of “establish” with “find” and you have Tanner commenting on the same finding law versus making law distinction from Judge Oldham’s lecture.

Tanner’s corrective places state courts, with their decentralized and antifederalist characteristics, at the forefront of a restoration of the classical legal tradition. “We must marry Antifederalist sympathies, which recognize the dangers of concentrating power in the hands of a governing class whose values are alien to the governed, to the holistic conservative jurisprudence, which requires an acceptance of a broader role for state action in the maintenance of common culture and public virtue,” he writes. “In short, Antifederalist procedure, natural-law substance; subsidiarity and solidarity.” Lawyers may no doubt draw reasonable distinctions between Tanner’s corrective focusing on state courts and Judge Oldham focusing on federal courts re: law making versus law finding. But what should be of note to the larger debate is how Tanner roots his proposed corrective in a proper appreciation for what Swift actually stood for:

Under Swift v. Tyson, properly understood, federal courts took state jurisprudence on its own terms, reasoning from natural law, local practices, and the customs of interstate trade that would not normally be applicable to intrastate disputes—a “general common law” that applied the same method as the state courts while appropriately tailoring it to the circumstances for which diversity jurisdiction exists. Federal courts did all this without assuming that state-court decisions somehow made law.

Notice that nowhere does Tanner allege the necessity in separating law from morality in the law-finding enterprise. Instead to him, law and morality are inextricably bound together in ascertaining “general common law,” as they are understood in the classical legal tradition. This is not a bug, but rather a feature of restoring moral as well as legal coherence to our jurisprudence according to Tanner.

Judge Oldham has come closer than any jurist in our own day in taking the matter of law finding versus law making to its roots. I have immense respect and admiration for the jurisprudence he is fashioning. As I told former Heritage Vice President John Malcolm the night Judge Oldham offered his remarks, it was the best Story Lecture I had enjoyed in a decade of attending them. It is out of that immense respect for his larger vision that I only wish to propose that Judge Oldham consider the classical understanding of law finding, rooted firmly in the Natural Law tradition, without a modern reworking of it within the school of legal positivism. Tanner has demonstrated that discerning general common law for the law finding exercise must include “Natural Law substance” that provides an external objective test on the overall endeavor of associating those datapoints on Judge Oldham’s scatterplot. As Judge Oldham stands on the threshold, I would invite him to think on whether in our own day, in Tanner’s reworking of Chesterton’s dictum, “A jurisprudence of Natural Law has been tried and found wanting, or whether a jurisprudence of Natural Law has been found difficult and left merely untried.”7

The New Digest is pleased to host a guest essay by Mr. Kimo Gandall (Harvard Law School J.D. ’25). This article was originally featured by the Harvard Salient. It was removed by the new Salient board. See more on the Salient’s governance change here. We have republished it largely verbatim.

Subscribe now

Share

“In those days there was no king in Israel; every man did what was right in his own eyes.”

Judges 17:6

Last spring, the Harvard Federalist Society added a basic tie-breaker rule: if Robert’s Rules of Order and the Elections Code failed to resolve a deadlock, the elections chair would appeal to natural law first principles to decide the controversy.

Cue Sarah Isgur, JD ’08—“conservative commentator,” anti-Trump Republican, and co-host of a podcast with David French, JD ’94. She mocked this otherwise modest rule change on air, scoffing that using natural law as a tie-breaker meant “correct outcomes… are more important than process.”[1] To underscore her point, Isgur read aloud a quote from Professor Adrian Vermeule ’90, JD ’93: “The common good condemns the abuse of official power for private purposes like nepotism or peculation; it underwrites equitable and public-regarding interpretations of semantic and legal meaning; and it helps to prevent a kind of pointless and fetishistic legal formalism that benefits few and harms all.”[2]

We can, for the sake of Catholic charity, admit that it is true that many sincere conservatives believe method is what keeps power honest. To invoke natural law, they likewise argue, is to announce that substance swallows structure and someone’s morality will rule the rest of us. [4]

This little campus skirmish exposes a much larger fault line on the American Right over whether the legitimacy of law lies primarily in the procedures that generate it or in the ends it serves. Christ’s condemnation is simple: “You leave the commandment of God, and hold fast the tradition of men.” [5] In other words, “Si principi placet quod lex nature non habeat locum in suis actis, tale beneplacitum non est lex,” or “If the Prince decrees that natural law has no place in his enactments, such a decree is not law.”[6]

Modern American conservatism was forged in the courts as much as at the ballot box. From the Warren Court backlash to the Reagan Revolution, its unifying professional ambition has been the restoration of process: the separation of powers, textual fidelity, majoritarian rulemaking.[7] The achievement is real—few law students finish a first-year Leg-Reg course without hearing the hymn of Justice Gorsuch, JD ’91, that only the “written word is the law.”[8] Yet, devotion can curdle into idolatry. When method becomes its own moral horizon, conservatives risk treating the mechanics of self-government as an ultimate good rather than a means ordered to higher goods.

Benjamin Pontz, a prior President of the Harvard Federalist Society, embodies this impulse with almost perfect candor: “…the idea that self-government according to a rule of law prescribed in advance through methods that are ours until we change them has inherent value, independent of particular outcomes.” [9]

Compare this to Aquinas’s sober instruction: “Since the law is chiefly ordained to the common good, any other precept… must be devoid of the nature of a law, save in so far as it regards the common good.” [10]

The two sentences pull in opposite directions. Pontz treats lawful procedure as self-justifying; Aquinas treats procedure as an instrument whose worth rises and falls with its contribution to the common good. Too many contemporary conservatives—including Isgur, if she properly understands her own argument—have slipped into the Pontz position, or a sort of procedural fetishism, wherein the process itself is justified independent of any outcomes it may facilitate.

The Natural Law Antithesis

Without diving too deeply into the literature, readers should be familiar with two simple syllogisms provided by Aquinas, that cement the natural law ontology of law.

First, beings act towards an end. That is:

P1: Every action tends toward something determinate.

P2: What is determinate functions as an end relative to the action.

C: Therefore, every agent, by acting, intends some end.

Even non-intelligible beings, Aquinas argues, act towards some end. Plants, for example, grow and reproduce as part of their nature. Though Aquinas develops this point within a cosmological argument for God’s existence, it also has application to the law.

P1: If something is contingent, it is reasoned.

P2: Human actions are contingent.

P3: Law is a human action.

C: Therefore, law is reasoned.[11]

Moreover, human beings have purpose; that is, they are teleological creatures. We act for reasons and toward ends that perfect our shared nature. Law, defined as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated,” [12] likewise possesses four classical causes:

Cause

Legal analogue (Cf. Aquinas, ST I-II 90).

Efficient

The lawgiver (e.g. Congress, agency, etc.)

Material

Promulgation (the act that binds)

Formal

The ordinance of reason (the rule)

Final

The common good (the community’s flourishing)

Strip away any cause and what remains is not fully lex. Natural-law jurisprudence therefore resists both pure voluntarism (the will of the sovereign is enough) and pure formalism (the words alone are enough). Text must be read in and through the background grammar of the common good, linked with promulgation, the lawgiver, and the ordinance of reason. That is, in the words of Vermeule: “[classical American] jurists did not explain the legality of moral principle by adverting to social facts, judicial choice, or more fundamental laws; on the contrary, they seemed to treat ‘moral laws’ as self-evident, unchangeable, and applicable ex proprio vigore [of their own force].” [13]

To recite perhaps a more familiar text, the Federalist Papers No. 57 instructs that “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

Bostock is the Gnosticism of Process

Process worship and fetishtic textualism share the same roots in abstracting legal meanings and background principles from text. Justice Gorsuch’s Bostock provides an example of this textualism, one incidentally reflective of a neo-Gnostic gloss on Title VII. Gnosticism, ancient and modern, pries spirit from body; Bostock achieves the same divorce by disentangling statutory form from statutory telos.

In Bostock, the Court contemplated if the “ordinary public meaning of Title VII’s command that [it] is ‘unlawful… for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his… sex…” means that Clayton County must retain a gay employee who handles children.[14]

Justice Gorsuch lifts the phrase “because of… sex” from its 1964 soil—where “sex” denotes embodied male-female complementarity ordered to family life—and treats it as a free-floating semantic cipher.[15] Once the text is severed from its procreative purpose, the Court can announce, with the assurance of a mystery cult offering a ‘thought experiment,’ that firing a male employee for dating men is ipso facto “sex discrimination,” because one must mentally register his biological sex to perceive his orientation.[16]

To explain his argument, Justice Gorsuch provides the following thought experiment:

“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.” [17]

The following rebuttals between Justices Gorsuch and Alito go like this: Justice Alito responds that the same hypothetical can be applied to a series of checkboxes, wherein an applicant can check a box revealing homosexuality without revealing sex.[18] Justice Gorsuch responds that, “even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision.”[19] At the core of Gorsuch’s reasoning is the removal of motivation as a necessary element of the law; he assumes that two individuals can be “materially identical in all respects, except that one is a man and the other a woman,” while both are homosexual.[20]

This maneuver is pure Gnosis: hidden insight (the counterfactual “but-for” test) overrides the plain, procreative nature of sexuality.[21] Indeed, Justice Alito points out, albeit in a footnote, the obvious: a man and a man or a woman and a woman can never produce a child naturally.[22] Applied to Aquinas’ formulation, Bostock divorces the final cause—what sex is orientated towards—with the formal cause. Justice Gorsuch’s assumption violates a basic tenant of the classical legal tradition, because it reads the reasoned ordinance of a legitimate authority—Congress—without any application to the common good; in effect, Justice Gorsuch denies that anti-discrimination statutes related to sex has any meaningful implication on “the flourishing of a well-ordered political community.” [23] Again, a reading of the formal cause necessarily requires reason for the common good. In layman’s terms, speaking of sex without procreation divorces the teleological roots of Congress’s substantive legal command.

Consequently, for the fetishistic textualist, the formal cause triumphs the final cause, compelling Clayton County to hire a gay man handling children.[24] The majority insists it is merely bowing to “the written word,” yet the word it venerates is a text de-incarnated, cut loose from Congress’ moral architecture and floated into abstraction.

Conservatives who long equated fidelity with textual purity now confront the grim epiphany St. Augustine saw in the Manicheans: a law stripped of its created order becomes a mechanism for un-creation. If the conservative legal movement cannot fuse text to telos, cannot insist that “sex” in law means what sex means in flesh, then Bostock will stand as the canonical heresy of our jurisprudence—a stunning proof that secret knowledge, when blessed by impeccable process, can demand that one believe a lie.

Retooling Conservative Jurisprudence

Of course, while Bostock is technically about reading text and not due process, its cautionary tale rings true in both worlds: legal meanings must be welded to the reality it serves. That is, conservatives must insist that ordinary meaning rationalizes ordinary metaphysics: a statute that uses “sex” or “mother” or “marriage” silently imports the bodily, procreative, familial goods those words name. Likewise, an election process designed to “enable the overall membership of an organization… to establish and empower an effective leadership” must be orientated towards that end.

In the context of the Harvard Federalist Society, that could mean—and very well should mean—that a future Election Chair is legally commanded to remove those candidates who engage in “The act of promoting, endorsing, or advocating for views, actions, or causes that are in direct conflict with the stated mission, values, or objectives of the organization, as outlined in the Harvard Federalist Society Constitution.”[25] Those values, embodied in the background text of our country, could potentially implicate: Marxism, or any variation thereof; feminism, or any variation thereof; pro-abortion ideology, or any variation thereof; secularism, or any variation thereof; or opposition to the traditional, naturally-ordered family, or any variation thereof. It will be upon the future Election Chair to decide these issues, although a strong statutory command can be read for these, given the background literature in classical legal theory that provides meaning to the words that the “State exists to preserve freedom,” that the “separation of powers is central to the Constitution,” and that, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”[26] Doing so will require courage.

Justice Gorsuch, ironically, is correct that words have meaning. But future Election Chairs should understand that peeling away the signifier of substance licenses horrors—​none clearer than Justice Alito’s Bostock dissent in footnote six to John Money, PhD ’52.[27] Money, the psychiatrist lionized for coining “gender identity,” treated language as pure self-definition. His most famous experiment—that of the Reimer twins—tried to prove that “girl” could be grafted onto a boy’s mutilated body through surgical cosmetics and ritualized “female training,” which included forcing one twin to perform sexual acts on the other while Money photographed the sessions.[28] The linguistic alchemy failed: David Reimer eventually took his own life. Yet the APA doubled down, praising Money’s “seminal concepts” and exporting his terminology into every modern stylebook.[29] That is how a dictionary emptied of metaphysical ballast becomes a delivery system for evil: the word “gender” floats free, replaced in flesh by a modern Sodom.

The Harvard Federalist Society’s election, and subsequent disputes over process, is emblematic of a struggle within the conservative intelligentsia—that is, whether process is a good within itself, or if process must be justified on substantive grounds. If the procedural conservatives win, we will follow a vision of the law like that of Justice Scalia, LLB ’60, where evil is technically good law, and our only remedy is to resign from government. To recite Justice Scalia on the Holocaust: “...if I were a judge in Nazi Germany, charged with sending Jews and Poles to their death, I would be obliged to resign my office….” In Justice Scalia’s vision, law is a nihilist endeavor—a jurisprudence of no rhyme or rhythm, but a mere amoral machine. If, however, substantive conservatives win, the classical legal tradition prevails, and we root law in the common good. That means, unlike Justice Scalia, we are not obliged to resign from an evil government perpetuating the Holocaust, but are called to actively subvert, undermine, and eventually seize, that government. Substantive conservative is a living, not dead, theory of law.

Leftists and procedural conservatives alike will represent substantive conservatism as an “antiquated and parochial belief” [30] but they underestimate the memetic power of Biblical wisdom.^[31] In 2 Chronicles 34, we are told of the coming of King Josiah. King Josiah emerges from a period of social and cultural turmoil, as his father, Manasseh embraces paganism, dispossessing the Jewish people.[32] King Josiah—before he was even twenty-one—embarked on a campaign to reclaim his nation from the Pagans:

In the eighth year of his reign, while he was still young, he began to seek the God of his father David. In his twelfth year he began to purge Judah and Jerusalem of high places, Asherah poles and idols. Under his direction the altars of the Baals were torn down; he cut to pieces the incense altars that were above them, and smashed the Asherah poles and the idols. These he broke to pieces and scattered over the graves of those who had sacrificed to them. He burned the bones of the priests on their altars, and so he purged Judah and Jerusalem.[33]

The substantive conservative—especially the conservative in positions of power, whether in the Joseph Story Society, the Federalist Society, the College Republicans, or elsewhere—can learn much from King Josiah and the natural law tradition; that is, to reclaim an idea of political imagination—what some have called history and tradition—and enact positive law that directs the polity to the common good.[34] Our tradition not only teaches this, but demands it. Students of law should leave knowing the words literally engraved on the walls of Langdell Hall: Non sub homine, sed sub Deo et lege. That is, Not under man, but under God and law.[35]

Share

[1] Sarah Isgur and David French, “Is Trump Going to War Against the Rule of Law?,” Advisory Opinions, at 1:30:46.

[2] Ibid. at 1:29:16.

[4] Ibid. at 1:30:28.

[5] Mark 7:8 RSVCE

[6] Baldus de Ubaldis, commentary on Digest 1.4.1.

[7] See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts, 24.

[8] Bostock v. Clayton County, 140 S.Ct. 1731, 1737 (2020).

[9] Compare Benjamin Pontz, “Review: Keeping our Republic,” Harvard Journal of Law & Public Policy, No. 40, 2 (2023) [emphasis added].

[10] St. Thomas Aquinas, Summa Theologiæ II-I, q. 90, a. 2, [emphasis added].

[11] Ibid. a. 1 (“Now the rule and measure of human acts is the reason, which is the first principle of human acts… since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason.”).

[12] Ibid., a. 4.

[13] Adrian Vermeule, “Enriching Legal Theory: Response to the Symposium on Common Good Constitutionalism,” Harvard Journal of Law & Public Policy, Vol. 46, No. 3, 2023, quoting Emad Atiq, “Legal Positivism and the Moral Origins of Legal Systems,” Canadian Journal of Law & Jurisprudence, 2022, 26.

[14] Bostock, 140 S.Ct at 1739.

[15]Compare Bostock, 140 S.Ct at 1742 with Bostock, 140 S.Ct at 1760 (Alito, J., dissenting).

[16] Bostock, 140 S.Ct at 1742.

[17] Ibid.

[18] Ibid. at 1746.

[19] Ibid.

[20] Ibid. at 1761.

[21] Ibid. at 1739.

[22] See Bostock, 140 S.Ct. at 1837 n. 19 (Alito, J., dissenting) “Notably, Title VII itself already suggests a line, which the Court ignores. The statute specifies that the terms ‘because of sex’ and ‘on the basis of sex’ cover certain conditions that are biologically tied to sex, namely, ‘pregnancy, childbirth, [and] related medical conditions.’ 42 U. S. C. §2000e(k). This definition should inform the meaning of ‘because of sex’ in Title VII more generally. Unlike pregnancy, neither sexual orientation nor gender identity is biologically linked to women or men (emphasis added).”

[23] Vermeule, infra note 29, at 17.

[24] Ibid. at 1737-1738.

[25] Ibid. The Code I have cited in this paper does not technically extend into the next year, and should be promulgated immediately again at the beginning of the year. Of course, the future elections chair should consider prudential extensions of the positive law (i.e. the code) that might further facilitate these ends, of which were simply not politically practical for the initial code. These would include, for example, interviewing candidates to align them with the express purpose of the society, and eliminating those who demonstrate commitments contrary to the Federal Society’s values.

[26] Joseph Story, Commentaries on the Constitution of the United States, 131 (New Orleans: Quid Pro Books, 2013) (“The aim of every political constitution is, or ought to be, first, to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue, the common good of society; and, in the next place, to take the most effectual precautions for keeping them virtuous…”); Adrian Vermeule, Common Good Constitutionalism, 59 (Cambridge: Polity Press, 2022) (“In the classical theory, the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis”); Confucius, The Analects, trans. Simon Leys, 2.16 (“The Master said, ‘The gentleman [junzi] understands what is morally right. The petty man [xiaoren] understands what is profitable.’”); Justinian I, The Institutes of Justinian, trans. J.B. Moyle, 7 (Oxford: Clarendon Press, 1913) (“The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.”); 1 Timothy 2:11–12 RSVCE (“Let a woman learn in silence with all submissiveness. I permit no woman to teach or to have authority over men; she is to keep silent.”).

[27] See Bostock, 140 S.Ct. at 1837 n. 6.

[28] Phil Gaetano, “David Reimer and John Money Gender Reassignment Controversy: The John/Joan Case,” Embryo Project Encyclopedia (Arizona State University), September 11, 2023, https://embryo.asu.edu/pages/david-reimer-and-john-money-gender-reassignment-controversy-johnjoan-case. (“Reimer and his twin brother were directed to inspect one another’s genitals and engage in behavior resembling sexual intercourse. Reimer claimed that much of Money’s treatment involved the forced reenactment of sexual positions and motions with his brother. In some exercises, the brothers rehearsed missionary positions with thrusting motions, which Money justified as the rehearsal of healthy childhood sexual exploration… at the age of thirty-eight, Reimer committed suicide by firearm.”); The irony of Money’s deep influence on the American Psychological Association (APA) is that his work—which the APA traces as early as the 1950s, with a strong emphasis on gender in the 1960s—may also provide originalist grounds for arguing that transgenderism falls under the APA definition, see Distinguished Scientific Award for the Applications of Psychology, infra note 32, citing John Money, “Effeminacy in Prepubertal Boys: Summary of Eleven Cases and Recommendations for Case Management,” Pediatrics 27 (1961): 286–291).

[29] American Psychological Association, Distinguished Scientific Award for the Applications of Psychology (1985): “For [John Money’s] unparalleled contributions to theoretical analysis and clinical treatment in human sexuality. He originated the seminal concepts of gender identity and gender role, which form a cornerstone in all modern theories of sexuality.”

[30] Compare Henry Bracton, The Laws and Customs of England, 22 (Harvard Law School Library Bracton Online, 2003) (“Law is a general command, the decision of judicious men, the restraint of offences knowingly or unwittingly committed, the general agreement of the res publica. Justice proceeds from God, assuming that justice lies in the Creator… and thus jus and lex are synonymous.”) with HLS LGBTQ Alliance, “Joint LAMBDA-QTPOC Statement on Recent Hate Speech on Campus,” The Harvard Law Record, October 6, 2023 (“The antiquated and parochial belief in a so-called ‘naturally ordered society’ has long been used to justify and allow the deprivation of certain groups from access to meaningful human experiences and participation in public life.”).

[31] Cf. Paul Matey, “Indispensably Obligatory”: Natural Law and the American Legal Tradition, 46 HARV. J.L. & PUB. POL’Y 967, 976 (“That is why human laws must have their root in the natural law and have as their end the common good. We are not wandering through a dark forest when interpretation requires us to turn to the ‘reason and spirit’ of our law. Because as Blackstone makes clear, and the Framers agreed, the ‘reason and spirit’—manifesting the lawmaker’s intentions through language—are the law.”).

[32] See 2 Chronicles 33:1-9.

[33] 2 Chronicles 34:3-5 RSVCE.

[34] Cf. Adrian Vermeule, “It Can’t Happen”; Or, the Poverty of Political Imagination, POSTLIBERAL ORDER (November 19, 2021) (“... the radicals, the extremists, the idealists, the critics, the dissenters, the activists of social change, have in my lifetime been far more realistic, and simultaneously more imaginative, about the capacious and flexible limits of political and legal change.”).

[35] O. John Rogge, The Rule of Law, 46 A.B.A. 981, 981 (1960) (“Insculpted in Stone over the portals of the main entrance of the Harvard Law School’s Langdell Hall are words which Edward Coke in his famous Sunday morning conference (1608) with James I of England quoted himself as saying, attributing them to Bracton, NON SUB HOMINE SED SUB DEO ET LEGE [not under man but under God and the law].”); See BRACTON, supra note 32, 33 (“The king must not be under man but under God and under the law…”); Cf. Liz Mineo, Harvard Law School to retire shield, THE HARVARD GAZETTE, March 14, 2016, https://news.harvard.edu/gazette/story/2016/03/harvard-law-school-to-retire-shield/.

I. Digging into Constitutional Foundations

As I reread Aileen’s new book with a view to articulating why I thought it would have both contemporary influence and staying power in constitutional scholarship, my mind kept returning to a poem written by the Northern Irish poet Seamus Heaney, a poem called “Digging”.

Born in the town of Bellaghy, not far from where I grew up, Heaney spent his childhood in a very rural part of the country in a modestly prosperous farming family. His father was a farmer, as was his grandfather, with farming being the familal way of life stretching back generations. Heaney, however, was encouraged by his father to pursue the academic route, ending up at a Grammar school and then at Queen’s University Belfast studying English literature.

His poetry, for which he won a Noble Prize, was steeped in the sights, sounds, scenes, landscapes, folkways, and history of rural Northern Ireland. In his 1966 poem “Digging” – one of his earliest and most famous works, Heaney imagines writing in his room back in his family home and hearing his father digging in the garden below his bedroom window. He hears “a clean rasping sound…When the spade sinks into gravelly ground”

And he then thinks back twenty years to his childhood, where in his mind’s eye he sees his father:

“Stooping in rhythm through potato drills

Where he was digging.

The coarse boot nestled on the lug, the shaft

Against the inside knee was levered firmly.

He rooted out tall tops, buried the bright edge deep

To scatter new potatoes that we picked,

Loving their cool hardness in our hands.”

He thinks “By God, the old man could handle a spade. Just like his old man.” Heaney’s grandfather, he says “cut more turf in a day Than any other man on Toner’s bog.”

While admiring of his father and grandfather, he concludes by saying:

“But I’ve no spade to follow men like them.

Between my finger and my thumb

The squat pen rests.

I’ll dig with it.”

Heaney’s grandfather dug for turf (which is like wooden kind of coal taken from boglands) to provide fuel for the farmhouse hearth to keep his family safe, warm, and healthy; Heaney’s father dug for potatoes to provide the food to sustain and nourish his family; and Heaney himself chose the intellectual life and used his pen to “dig” deeply into the sights, sounds, scenes, landscapes, songs, folktales, and history of his homeland to sketch beautiful poetry showing us how, in the words of his Nobel Prize citation, the “local can articulate the universal… God is in the bits and pieces of the Everyday.”

In each case the everyday activity of digging, whether physically with a spade or intellectually with a pen, was the banal but necessary prelude to providing things of extraordinary value to human flourishing – warmth, comfort, food, nourishment, art, and beauty.

And I thought to myself as I read The Collaborative Constitution: Aileen, too, is a digger.

Aileen’s book is nominally about how different constitutional actors do – and ought to - come together to collaborate to protect rights, but many of her insights are relevant to much wider issues central to constitutional studies. Wielding her pen, she has dug deep into the everyday practices, norms, behaviours, and commitments of government officials of well-functioning constitutional systems like the UK – those which are generally stable and peaceful, robust in their capacity to respond to internal and external political challenges and lacking in sustained or systemic abuses of power. The book is best read as the product of intellectual digging into the discourses and practices of public law in well-functioning constitutional systems, and as an examination of what makes the formal constitution of texts, structures, and offices work.

Aileen probes the actions and mindsets of politicians, civil servants, government lawyers, judges, and parliamentarians who work within governing institutions - and her digging has excavated insights about what it takes for constitutional government to be successfully sustained over time and despite the tensions, conflicts, and ill-tempered spats that can break out between different organs of state.

Analogously to Heaney’s poetry, I think Aileen’s scholarship shows us how the profound; namely, the considerable ethical and civilisational achievement involved in sustaining constitutional government and the great goods it yields for human wellbeing: like avoiding tyranny, securing stability and peaceful transfers of power, promoting vigorous but non-arbitrary governance, channelling democratic energy and hope in peaceful ordered ways, is often built upon the foundation of the seemingly ordinary and hum-drum.

Constitutional government is sustained, in large part, through the slow bore process of countless officials going to work every day across the different offices of state and keeping the constitutional show on the road, motivated by virtues of collaboration, mutual restraint, trust, moderation, and compromise. Some everyday scenes that Aileen highlights occur every day in a well-functioning constitutional system without much comment or fanfare include:

• Executive’s choosing to structure their internal workings so that concern for legality is central not peripheral, so that its policies are constantly screened by government lawyers for their compliance with statute, constitutional principle, and judicial rulings; lawyers who are bound by ethical codes of integrity and professionalism as well as loyalty to the incumbent administration.

• Executive’s choosing to draft their statutes through using a professional corps of drafters who ensure statutes are drafted consistent with rule of law values, like accessibility, prospectivity, intelligibility.

• Legislature’s choosing to internally structure their procedures to permit the executive to govern and implement its electoral mandate but while also providing official recognition to the Opposition, and regular and standing channels of Executive accountability – from ministerial questions to a well-resourced committee system.

• Courts which are funded, independent, and not cowed or bullied such that they can render justice without fear or favour.

• Courts trying to faithfully give effect to the lawmakers reasoned choices, within constitutional bounds.

• Courts showing deference in both administrative and constitutional law cases to the institutional capacities and democratic legitimacy of the executive and legislature.

For Aileen, a key goal of the book is persuading people that these scenes, which happen everyday without comment, are focal case examples of constitutional relationships, the kind to be promoted and sustained precisely because they nourish, and do not sap, the life force of the constitutional system.

A more enduring constitutional order, Aileen wagers, is likely to be the one where each branch will be slow to press their formal legal powers to the absolute hilt where doing so might erode the robustness of the overall system; where the institutional capacities and responsibilities of each branch are respected when decisions impacting their functions are being made by the others; where each branch is rendered what it needs by the others to adequately discharge its functions; where disagreements are expressed firmly but civilly and not in apocalyptic or martial terms; where keeping good working relations is at the heart of the project of constitutional governance, not institutional combat by branches with deeply competing ambitions; and where there is a deep expectation that a shared commitment to the constitutional rules of the game will take priority over securing one’s immediate political goals. Aileen’s digging aspires to make these banal but essential foundations of constitutional government “visible for all to see”.

Aileen’s work travels, perhaps unconsciously, in the vein of many great works in Western political thought that argue that a critical precondition of sustaining a healthy polity, is that its citizens and officials must have a shared disposition and continuing joint intention to work together to secure their shared common good over time, and in the face of internal and external challenges and threats. As Augustine famously wrote in the City of God, the res publica, or body politic, is at its core a gathering of people and families “bound together by a common agreement as to the objects of their love”.[1]

The more durable polity will be one with a shared willingness amongst officials and citizens to endure and share hardship and challenges and to resolve or live with disagreements, so that together they can better protect the common objects of their love - the good of this polity and happiness of this people, over time. When this shared disposition of fellowship substantially frays, to the point it risks disappearing, so too does the polity in any focal sense of that term, as a community bound together with the common goal of the flourishing and happiness of its members.

In deeply impoverished forms of political community, there will be no serious joint intention amongst a people, between ruler and ruled, and amongst the rulers, to secure the common good of each and all. What might follow in the wake of a breakdown in common fellowship and civic friendship is a form of political life ruled by enmity, hatred, fear, disgust, provocation, and friend/enemy distinctions.

When a political community breaks down in this way, it can be truly disastrous for its citizens and all those left to languish in whatever diluted form of political association emerges from the turmoil, with the worst cases being dictatorships ruled by violence and repression, failed states wracked by anarchy, the tyranny of the warlord, or tribal factions engulfed in civil war. What is common to these forms of polity is that they lack worthy common objects of love and are all deeply disordered with respect to the essential function of political life: to secure human flourishing.

Aileen rightly observes that a tell-tale sign that a shared sense of fellowship is being eroded in a political community is where the basic rules “of the constitutional game” are “cursorily or contemptuously cast aside” for partisan or private gain. Maintaining the spirit of collaborative constitutionalism, I think we can say, is an important (but definitely not the only) part of maintaining a shared sense of fellowship and commitment to the common good of our political community now and for our posterity.

Aileen argues that acting to uphold and keep steady the relationships that make constitutional government effective is an expression of the virtue of patria – of “patriotism” and a reasonable recognition that our constitution is, to quote Finnis, “one of the fine things – our patrimony and social capital – to which it is good to be attached, in large measure because one is grateful that these things were made to be, and are there for us all in our infancy, maturity and, we hope, in any later dependency”.[2] Or as Aileen similarly puts it, commitment to making constitutional relationships work recognizes that our constitution is a “valuable inheritance from times past and a precious legacy for future generations.” To degrade or disregard a tried and tested constitution for one’s own private or factional ends is to indulge in the vices of ingratitude and injustice.

I think Aileen’s work will have its most lasting impact in reminding its readers about the importance of digging into the unwritten customs, dispositions, practices, and virtues like that of patria - that supply the muscle and sinew to the bones of formal constitutional structure and help that structure act for worthy common objects of love like the common good and its constitutive components of peace, order, stability, and civic friendship.

II. Digging into why executive power is important to good government

Another part of Aileen’s book I found compelling was her discussion of the executive as a pro-constitutional actor. Aileen takes aim at the trope of the “executive as evil – the constitutional villain of the piece which poses a standing threat to principles of constitutionalism, a presumptively problematic power which must be constantly cabined and contained”. The starting point Aileen adopts for assessing the proper place of the executive branch in a constitutional order is not to assume, as Endicott puts it, that there is “something generally wrong with constitutional executive power.”

Indeed, along with the likes of Aristotle, Aquinas, Alexander Hamilton, Max Weber, Elena Kagan, and Adrian Vermeule, Aileen associates the executive with a great many institutional goods important to a healthy body politic – its ability to act with energy, dispatch, technocratic expertise, and to serve as a focal point for electoral hope and expectation. Her point, which I think ought to be uncontroversial, is that it’s important to remember the rather obvious and banal fact that the executive plays the indispensable role as the directive and driving force of the State, the “engine” and “primary branch” of government, as Aileen puts it. More than any other branch, it shoulders the “awesome task of running the country”. And just one of many functions it shoulders is that of enforcing and protecting important rights and goods.

Of course, the executive can abuse its power and trample on rights. A prudent constitution will bind the executive to law and, in doing so, attempts to curb the risk of tyranny. But these risks, and our concern for abuses of public power, should not obscure the fact that the executive is essential for the protection of rights. The protection of human rights does not, in the last analysis, require either a domestic or an international court to engage in the judicial review of legislation. These are optional. But the protection of rights does require a body with the capacity to ensure that people are rendered what they are owed as a matter of justice.

It is often overlooked, by those who think rights find their primary protection in a specially designated charter and judicial review, that a great portion of ordinary legislation on our statute book exists precisely to protect human rights and goods. This legislation is, of course, drafted by the executive, initiated into the legislature by the executive, and enforced by the executive through the coercive, financial, and pedagogical powers of State.

Concern for justice and human flourishing is reflected in countless detailed statutes initiated by the Executive and enacted by Parliament. Think of statutes in our own countries which provide for things like access to healthcare and medicine; tiers of publicly funded education; social welfare safeguards for the elderly, ill, and those seeking work; housing assistance for the homeless or those on low wages; protection from arbitrary eviction; legislation and policies establishing labour rights and mandatory workplace protections; and countless others. These all concern the protection of human goods and well-being – the demands of justice, in other words. Indeed, even the criminal law code enforced by executive officials – the paradigmatic example of executive power – is in part about protecting and vindicating the basic rights of citizens to life, bodily integrity, and property. As Aileen puts it, the Executive is the branch that delivers rights to people with “concrete particularity”.

I think it is not an exaggeration to say that ordinary law drafted, initiated, and enforced by the Executive is how rights and human flourishing are primarily protected by the State in well-functioning polities. This is but one of many reasons why Aileen is undoubtedly correct to say the Executive is a branch of government “worthy of our cautious and careful respect”.

To dig a little deeper into the Executive’s importance, I think it is worth dwelling on at least one obvious risk of trying to maintain a weak executive. But while I think they are banal and obvious points, they might nonetheless be overlooked by those primed only to see the risks of executive strength.

Without a robust executive, constitutional systems risk descent into what the famous Italian classical jurist Bartolus dubbed “monstrous government.” This is a constitutional order where political authority is imbecilic, and unable to robustly use public power on behalf of the State to promote the good of citizens. Instead, there will be weak constitutional actors and several powerful ‘private’ tyrants - in the classical sense of seeking public power and influence for personal gain - all vying for control over the direction of the polity, but where none can assert a decisive balance of power.

Vermeule has argued that the “core evil” of this type of regime is its “incoherence” and “political chaos” due to its lack of “purposive rule of any kind”. It is rightly described as monstrous because the body politic resembles a hydra, each of whose several heads move independently and often in conflict with the others. A lamentable result of this political chaos and a serious lack of purposive rule for the common good is that it is conducive to immense proliferations in abuse of private power; abuse of the weak many by the powerful few, with the many lacking any access to countervailing public power.

A medieval analogue might be a kingdom with a weak monarchy, who is ill-equipped to prevent an oligarchical and greedy nobility from oppressing or exploiting the peasantry, or engaging in destructive internecine conflict. An example from the Gilded Age might be a government unable to prevent the predation of robber barons upon economically vulnerable employees and consumers. A more contemporary example would be a form of constitutional government whose executive, through an excess of veto points or sclerosis in taking effective political action, is unable or unwilling to protect the citizenry from the machinations of extremely wealthy and influential corporations, who have no particular concern for human flourishing – but whose decisions can carry enormous economic, environmental, and political repercussions for the community.

For those concerned about these risks, the movement within many constitutional systems to executive-centred government is explainable, and justified, as an accumulation of small-c constitutional changes and developments – countless delegations of statutory authority and a decisive shift in where citizen’s political expectations and hope lie – designed to sustain political authority better able to face down and contest with any “competing, partly extra-legal, and badly ordered” hierarchies, comprised of political actors and socio-economic elites led by private interests and not concern for the common good.

In other words, another prudential reason for the different branches of the State to collaboratively construct and maintain the executive-led administrative state, is that it can provide a standing institutional bulwark against the monstrous hydra identified by Bartolus emerging in the first place, or a remedy capable of slaying it.

The notion that a powerful executive can provide an institutional means of protecting the many from exploitation by the oligarchic few, is not a new or novel thought, but one present across centuries of public law thinking in the Western tradition in some form or another. Aileen, I think, is attuned to this - today often overlooked - classical way of conceiving of executive power.

III. Question

I will end with a question for Aileen; one I think may unearth some respectful disagreement. I would like to know how Aileen thinks her framework accommodates deeply reasoned and distinctively non-knee-jerk arguments for radical constitutional change that impact the extant powers of a branch of government.

The collaborative constitution is, at its core, about making the constitutional arrangements one already has work. This of course might include absorbing incremental and organic change - new conventions and norms might develop as constitutional actors interact to deal with new problems or revisit how they address old ones with fresh eyes.

But how does a framework focused on making the current constitutional arrangement work speak to situations where officials in some branches are convinced that the status quo needs serious, even radical, revision for deeply morally serious reasons linked to a concern for the common good – the same end collaborative constitutionalism is geared to promoting.

The specific example I’ll give is that, in the last decade or so in the UK, an increasingly large range of politicians, commentators, scholars, media voices, and citizens, have come to the firm conviction that the UK’s framework of human rights law anchored on the European Convention on Human Rights and Human Rights Act 1998, is inimical to the common good.

Now, many of these same people who would accept that, inasmuch as the Human Rights Act 1998 remains the law of the land, then the role of the courts in interpreting and enforcing it should be addressed with comity and respect. Judgments should be obeyed, government lawyers must advise on the law as it is, and the government should not invite the legislature willy-nilly to legislate contrary to its legal commitments.

But many have nonetheless come to the settled conclusion that the particular form of judicial power in the Human Rights Act 1998 is constitutionally intolerable for this polity, and they wish to see an executive with an electoral mandate invite Parliament to excise it and return, in crude terms, to the constitutional arrangements prior to 1998. What does the framework of collaborative constitutionalism have to say about these situations: where you have a distinctly non-knee-jerk, but settled and reasoned conclusion by many relevant constitutional actors, that a constitutional rebalancing is required.

Does this necessarily show a lack of comity? Are constitutional powers enjoyed by courts or executives settled for all time in aspic? Or can they be revised in a licit manner under the lights of the Collaborative Constitution?

[1] Augustine, City of God, XIX, chapter 24.

[2] John Finnis, “Reflections and Responses” in Robert P George & John Keown, Reason, Morality, and Law (Oxford University Press, 2013) 562.