Constitutional Thomism: A Modest Proposal

'The democratic statesman must subordinate his own interests to the good of his fellow citizens and foster the temporal political common good, which is not separated from the common good in the fullest sense: God.'

I found it interesting that a disclaimer was included in the author's biography at the end of the article: 'The views and opinions expressed in this essay are those of the author and do not necessarily reflect the views or positions of any entities that he represents', which would include the USA West Province of the Society of Jesus of which he is a member and the Pontifical Gregorian University in Rome in which he is a professor.

 From The European Conservative

By Fr S. Hendrianto, SJ

The democratic statesman must subordinate his own interests to the good of his fellow citizens and foster the temporal political common good, which is not separated from the common good in the fullest sense: God.

Introduction

Alasdair MacIntyre once said that if we fail to understand the complexities of the common good and erroneously answer the basic questions that it presents, we will bring “not good but evil.” MacIntyre holds that one must conduct a philosophical reflection to answer these problems. Unfortunately, the debates over constitutionalism and the common good in the last two years have failed to produce a substantive philosophical reflection on the subject matter. Thus, while the “Common Good Constitutionalism” proposed by Professor Adrian Vermeule has much potential, it also has the potential to foster evils due to its lack of strong philosophical and theological foundations.

To aid and strengthen Vermeule’s proposal, I offer a concept herein referred to as “Constitutional Thomism.” Constitutional Thomism is not concerned with governmental structures or constitutional interpretation so much as with the arrangement and distribution of offices. It focuses on examining the concept of a “best regime” ruled by a philosopher-king who holds office with practical wisdom while not devolving into a tyranny. Constitutional Thomism is compatible with modern constitutional democracy because both are centered on the art of statesmanship. Under Constitutional Thomism, statesmen rule through wisdom but do not force the citizenry to obey them. These statesmen must understand the instability, impatience, inattention, envy, and ignorance that plague the souls of their citizens, and counteract the restlessness of the soul. At the same time, the statesmen must also be able to lead their citizens to an understanding of the common good, not only in the temporal sense, but fullest sense—the seeking of God. By promoting the common good to their people, the statesmen will also foster statesmanship among the multitude. 

Awareness of What is Missing 

Since the publication of his piece on Common Good Constitutionalism in The Atlantic in March, 2020, Vermeule has received both criticism and praise for his proposal. Nevertheless, most of the analyses from both critics and supporters of Vermeule’s theory have not taken a deeper look into the theory’s philosophical and theological underpinnings. This essay is not intended to be an exhaustive or comprehensive analysis of the entire discussion of the debate over the Common Good Constitutionalism, but rather to make observations and propose a modification to Vermuele’s theory.

The real issue is deeper than the issue of constitutional interpretation: it is Vermeule’s understanding of the common good, which, while precise, contains a mistake. While Vermeule claims that his idea of the common good is based on the Aristotelian-Thomistic tradition, he takes it to be a generic universal good as the common good of particular societies. By which I mean that Vermeule thinks that the common good, at its most basic, is a collection of material goods to be distributed among many. Vermule’s common good emphasizes more the need of political authority to pursue and coordinate a state of affairs to pursue basic material goods. Vermuele’s understanding of common good, thus, may provide more support for the progressive left than the Catholic right. Progressive legislators could use the language of common good when defending such policies as legal abortion or legal access to contraception.

But in the Aristotelean-Thomistic tradition, the common good is not one universal good. It is a complex analogical idea. To start, the common good in the fullest sense is God, and second, the common good is the order of the universe. Only then is there a temporal or political common good in the context of the relationship between human beings, but not restricted to particular societies. 

In his scholarly works up to this day, Vermeule has only focused on the third level of the common good, that is, the temporal or political common good, likely in order to avoid the theological implications of Aristotle’s view of the common good, one that was later fully developed by Aquinas. For example, in his Nicomachean Ethics, Aristotle argued that if men were the noblest thing in the universe, then political science or practical wisdom is the highest knowledge—though man, he claimed, is not the best thing in the world. In the Metaphysics, Aristotle argued further that the nature of the universe contains the highest good, which can be found both as something separately and the order of its parts; just as how in an army—to use one of Aristotle’s examples—the good of the army is found both in the order of the whole and in the leader. In the order of the universe, gods are the leaders, and their life is the object of men’s contemplative activity. Aristotle postulated that God is the highest object of thought because God compels our wonder, our life belongs to God, and God’s essential actuality is both the best life and an eternal one. Therefore, men’s highest activity is possessing this highest object of thought. There is an ongoing debate among historians of philosophy on whether Aristotle believed in the gods of Olympus, or only in the God as a perfect being. Moreover, Aristotle’s concept of God has been criticized as cold and inhuman. Regardless of the nature of Aristotle’s God, Aquinas provided a solution by adding revelation, with the concept of the God who created the world out of nothing, and the God who became incarnate in the person of Jesus Christ.

The central issue with Vermule’s theory is that he tries to separate the temporal political common good of particular of societies from the common good of the universe—Almighty God. In his book Common Good Constitutionalism: Recovering the Classical Legal Tradition, Vermuele argued that he only focused on “the temporal sphere” for two reasons. First, his project is limited to the ends of natural or temporal happiness. Vermeule relies on the Dominican Friar Walter Farell’s work The Natural Law according to Aquinas and Suárez to justify his position that while supernatural happiness is the final end of man, not all communities are concerned with leading man to his supernatural end directly. Second, Vermeule explains that he must limit himself to the terms of his professional competence as a civil lawyer. Therefore, his project could not advance any particular account of ultimate ends. But the real issue is not about the autonomy of temporal power within a proper sphere and professional competence, but rather, about Vermule’s misconception of natural law. 

Vermeule claims that the background of his Common Good Constitutionalism is the principle of natural law. In a paper entitled Myths of Common Good Constitutionalism, co-authored with Conor Casey, Vermeule claims that his Common Good Constitutionalism is based on Aquinas’s natural law theory, presenting his account of natural law as modeled on Aquinas’s account in Question 95 of the Prima Secundae of his Summa Theologiae, in which Aquinas answered an objection that human laws are not derived from natural law. Vermeule explains that for Aquinas, some precepts of the natural law can be concretized in positive law via a deductive process. But then Vermeule states that the concretization of natural law principles is complicated because the natural law’s first precept is broad and vague. Therefore, the principles of natural law require specification by the political community, such as planning a just economy to provide the necessities of life, sound education, healthcare, etc.

Aquinas’s analysis of the first principle of natural law is in Question 94 of the Prima Secundae, in which he states that central to his understanding of natural law is that “the precepts of the natural law are to the practical reason what the first principles of demonstrations are to the speculative reason; for both are self-evident principles.” To understand this distinction between “self-evident principles of practical reason” and “self-evident principles of speculative reason,” one must examine Aquinas’s theory of the four orders of reason. In his Commentary on the Nicomachean Ethics, Aquinas describes the four ways in which order pertains to reason: the first order of reason establishes the order of things in nature. The second order of reason introduces its own consideration, an intentional order that includes logic. The third order of reason establishes itself in the operation of the will. The fourth order of reason introduces material matters or external things.

In his Commentary on Politics, Aquinas introduced the notion that the third order of reason (practical reason) imitates the first order of reason (speculative reason) in some respect. If the third order of reason imitates the first order, then they are not radically different. Nevertheless, Aquinas writes, “the speculative and practical intellects are not distinct powers. The reason of which is that… what is accidental to the nature of the object of power does not differentiate that power.” In other words, practical reason and speculative reason are not radically different, but have different objects—as Aquinas writes elsewhere, “the practical intellect is ordered to the end of the operation; whereas the end of the speculative intellect is the consideration of truth.”

While presenting himself as a follower of Aquinas, Vermeule’s account of natural law differs from Aquinas. In his interpretation, Vermeule refers to third-order reasoning instead of the first order. Vermule’s approach to natural law emphasizes the need for political authority to pursue and coordinate a state of affairs to pursue basic goods such as peace, justice, and abundance. Vermeule’s natural law theory does not depend on metaphysics and natural theology but on practical reasoning. This position departs from Aquinas’s account of natural law, in which the speculative reasons (first-order) are bound up with the practical reasons (third order). In leaving out speculative reasoning in his account of practical reasonings in interpreting Aquinas, Vermeule then commits himself to subsequent misconceptions in his account of the common good, which solely focuses on the temporal or political common good at the expense of God as the most real and worthy good that humanity is called to pursue. 

Constitutional Thomism: A modest proposal to aid and strengthen Common Good Constitutionalism

In other settings, Vermeule has advocated what he calls Catholic Constitutionalism. Nevertheless, the way he presents his Common Good Constitutionalism is not fully theological, and thus not persuasive as Catholic Constitutionalism. Therefore, while I admire the potential in Vermule’s theory, I propose a method to enhance his theory through what I call Constitutional Thomism. The term “constitutional” refers neither to any written constitution, nor to a modern version of any unwritten constitution. Rather it is about considering what is the best regime, just as how in the classical Greek tradition, the best regime is one ruled by a wise philosopher-king. The notion of a philosopher king is associated with Plato; but while Aristotle had an objection or correction to Plato’s philosopher king in practical sense, he adhered to Plato’s view on purely theoretical sense. In the Politics, Aristotle stressed the fact that “the good ruler must be a wise (practical) man.” Then, he turned to the politikos (statesman), as someone who has practical wisdom (phronesis), and so he is capable to look at what is the best constitution (politeia) for the city. In short, the questions of the constitution should revolve around the overall arrangement and distribution of offices and honors. 

Some American conservative constitutional lawyers (Vermeule among them) love to cite St. Thomas Aquinas’s treatise on Law, especially the natural law theory, to support their arguments. Nevertheless, most of them fail to locate Aquinas’s natural law within his larger theological works. If one looks carefully at the structure of Aquinas’s Prima Secundae, after the treatise on the end of man—beatitude, Aquinas breaks down the Prima Secundae into a treatment of human acts, and he follows this with an analysis of the principles of those acts. Aquinas devotes over half of the Prima Secundae to the principles of human acts, and a good number of those questions address the extrinsic principles of law and grace. In doing so, Aquinas divides the principles of human actions into intrinsic and extrinsic principles. Under extrinsic principles, Aquinas asserts in Q. 90, the devil inclines us to do evil, but we are moved toward good by God, instructed by law and assisted by grace. Constitutional Thomism is therefore always about law and grace, not law alone.

For Aquinas, grace comes from God, just as how the head mediates thoughts to the members of the body. In a political context, Aquinas argues in De Regno, God’s grace works through the king. Thus, in Aquinas’s economy of grace, God’s grace is both immediate and mediated to individuals. In other words, while God gives grace immediately, God also spreads grace through mediators in the polity, such as kings to their subjects, and the pope and bishops to all Christians.

The immediate issue is whether this type of constitution is an authoritarian constitution that fosters tyranny. It does not, because the philosopher-king must not only rule for the good of the ruled, but also not coerce them to obey. St. Thomas Aquinas’s treatment of the relationship between politics and coercion offers some insight on the subject matter. In Aquinas’s treatise on Law, he defines law as “an ordinance of reason” (rationis ordinatio – Q. 90.4). Thus, command, prohibition, punishment, none of those things define something as a law. For Aquinas, irrational commands and prohibitions, even from the highest political authority and backed by strong coercive threats, are “lawlessness” (iniquitas – Q.90. 1. ad 3), “a perversion of law” (perversitas legis – Q. 92. 1. ad 4), indeed “violence” rather than law (Q. 93. 3. ad 2). To qualify as “an ordinance of reason,” a law must lay out appropriate means to a “common good,” which is not understood to be some mere sum of individual goods. Hence, arrangements directed to private goods at the expense of the common good are not laws (Q. 90. 2).

Before diving further into the issue of Constitutional Thomism and modern democracy, it is necessary to revisit Aquinas’s theology of grace to understand it in full. Aquinas describes grace as a “habitual gift infused by God into the soul.” He distinguishes grace from natural virtue by asserting that there are two types of virtue: infused and acquired. We cannot acquire infused virtues by our natural powers. Acquired virtues, on the other hand, are virtues that can be acquired by human effort. While Aquinas held that natural virtue, being contrary to the effects of original sin, requires the reception of prevenient grace, he also believed that one sinful act does not destroy a habit of acquired virtue. Although man cannot avoid mortal sin without grace, he is not hindered from acquiring a habit of virtue (ST I-II Q. 63, Art. 2, ad2). For Aquinas, the infused virtues are both “derived from” grace and “ordained to” grace. Thus, grace is both the source of the infused virtues and the end toward which they are directed. In his words, “the infused virtues will enable a man to walk in the light of grace,” which is a participation of the Divine Nature. For the acquired virtues, on the other hand, Aquinas describes dispositions that grow out of human nature. 

In his De Regno, Aquinas argued that a king must practice acquired virtues because it would render the king more receptive to the grace of infused virtues through which he might genuinely obtain the beatific vision. For instance, in Book I, Chapter 5, Section 33, Aquinas persuades the king to practice the virtue of loyalty. Aquinas used fides (fidelity) to denote a covenant between the king and his people. Aquinas refers to the king who faithfully procures the common good, as the exemplar of a good king who maintains his covenant with his subjects. Here, fides as loyalty is an acquired virtue, rather than an infused virtue.

Constitutional Thomism, which is based on grace and nature, is not contrary to a modern constitutional democracy. As a student of Aristotle, Aquinas acknowledged the existence of a plurality of just and legitimate regimes, so he would not impose the establishment of kingship over democracy. But for Aquinas, what kind of government structure, or how to run the government, is left to the discretion of wise and well-informed rulers or potential rulers, who are in a position to determine how the offices shall be arranged. Herein we see the combination of grace and nature; the wise and well-informed rulers signify a positive appreciation of human nature, in which the wise rulers would govern people toward the final end, as if this end could be attained bY virtue of human nature , but in fact he cannot achieve the end without the grace of infused virtue. In other words, as the wise ruler depends upon grace for knowledge of his final end, he also depends upon grace to attain to that end.

In constitutional democracy, we can see this concept of Constitutional Thomism as compatible with the art of statesmanship, in which the democratic statesmen have the role of directing democratic people to a far-reaching conception of human aspiration and ambition. Indeed, Tocqueville admired the extraordinary statesmanship of the American founders and believed that the cultivation of statesmanship was essential for American democracy. Statesmen must be able to set aside their interests for the good of the many, and at the same time, must also be able to lead many people to an understanding of the common good. By promoting the common good to the many, the statesman will also foster statesmanship among the multitude.

Borrowing from Aristotle, Aquinas emphasizes the virtue of magnanimity. In De Regno, Aquinas reiterates that the magnanimous man does not seek honor and glory as if it were something great which might suffice as a reward, but so too demands nothing beyond honor and glory from men. While Aquinas did not explicitly demand that the king emulate Aristotle’s magnanimous man, he included this reference as an instruction for the king to approach honor and glory correctly. Similarly, democratic statesmen must possess the virtue of magnanimity, by which they will rule not only for their own benefits but rule like a captain on a ship, who rules for the benefit of the whole ship so that his crew can prosper. The democratic statesman must be able to subordinate his own interests to the good of his fellow citizens and foster the temporal political common good, which is not separated from the common good in the fullest sense, God.