The Articles of Confederation: A Satire

It has been quite a while since I have posted here. The majority of my writing has been, as ardent readers no doubt know, at Ius & Iustitium. I would not want to neglect the readers of Semiduplex, though. To that end, I offer a follow-up to Anglo-American Originalism: A Satire, published in May 2020 at The Josias.

I have been following the debate over Adrian Vermeule’s Common Good Constitutionalism with great interest. Ever since the publication of his essay in the Atlantic, Vermeule’s approach to constitutional interpretation has been one of the hottest topics in legal circles. Originalist legal academics have spent considerable energy opposing Vermeule’s theory. They have presented various objections of varying degrees of coherence, though none seems conclusive. Even Amy Coney Barrett took the occasion of a memorial post for a mentor to come out against it. For his part, Vermeule has answered his critics in various places, and even as I write this a symposium, at Harvard, hosted by the Harvard Journal of Law and Public Policy, will address common-good constitutionalism is taking place tomorrow.

The originalists are I think missing altogether an important aspect of our Constitutional landscape, namely that the Constitution was adopted by way of a procedure that was not authorized in the Articles of Confederation. The Articles of Confederation were adopted in November 1777 and became effective on March 1, 1781. According to the history one learns in school, the Articles of Confederation were an unworkable mess that hamstrung the federal government from doing things everyone agreed that it should do. So they came up with the Constitution, which replaced the Articles of Confederation, and that has been the operational document for the Republic since 1789 (as amended).

The problem becomes clear upon a quick review of the Articles of Confederation, which I doubt anyone has read (if at all) since school. If you need a refresher, here goes. Article XIII of the Articles of Confederation establishes the procedure for lawful changes to the Articles and provides:

Every State shall abide by the determinations of the united states, in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.

We can get a quick idea of the original semantic meaning of this text by consulting an old friend of any originalist: Noah Webster’s 1828 American Dictionary of the English Language, which defines “perpetual” in the first place as “Never ceasing; continuing forever in future time; destined to be eternal; as a perpetual covenant; a perpetual statute.” He also defines “inviolable” as (in the second place) “Not to be broken; as an inviolable league, covenant, agreement, contract, vow or promise.” And he defines “alteration” as “The act of making different, or of varying in some particular; an altering or partial change; also the change made, or the loss or acquisition of qualities not essential to the form or nature of a thing.”

Article XIII is clear: the Articles were to be observed without being broken forever, and any “alteration” had to be agreed to “in a congress of the united states” and then “confirmed by the legislatures of every state.” Webster’s definition suggests that, in America at about the time of the Articles of Confederation, an “alteration” was understood as something touching upon a particular but not the form or nature of a thing. The form or the nature of the United States as established by the Articles of Confederation would be, then, “never ceasing; continuing forever in future time” and so forth.

And it is clear that the Articles could not be amended or otherwise changed by custom or some parallel usage. Article XIII provides the sole means of “alteration” of the Articles, which were otherwise to be inviolably observed in a perpetual union. While custom may well be a source of law, an interpreter of law, and an abolisher of law on Thomas Aquinas’s account, it has nothing to do with the procedure established in Article XIII. When, however, the current United States Constitution was proposed, it was submitted for ratification in a manner that was inconsistent with Article XIII of the Articles of Confederation. Article VII of the Constitution states: “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”

We know that the ratification of the Constitution proceeded along the lines set forth in Article VII. The states convened ratification conventions, which, at length, ratified the Constitution. One might take the resolution in September 1787 of the Congress transmitting the Constitution to the states as the sort of approval of “alterations” envisioned by the Articles, if the Constitution represented an alteration as the term would have been understood. But it doesn’t matter if it was: Article XIII is clear—the state legislatures, not conventions, must assent unanimously to any alteration of the Articles. None of this 9/13ths business. Some number of states could make a side deal, of course, but that would be nothing to do with the United States.

The originalists have established that the procedure outlined in Article XIII is not merely binding as a semantic matter but also as a moral matter. Recall, as certain originalists have reminded us, that Thomas Aquinas holds that a law “nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”—”is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II q.90 a.4 co.). The Articles of Confederation were therefore lex in the classical conception, since they were an ordinance of reason for the common good, made by him who has care of the community, and promulgated. The authority of the lawgiver in the case of all leges must be considered, we are reminded, and the authority of the lawgiver is owed obedience (ST II-II q.104, esp. a.2 co.).

It is unavailing to contend, as one might at this point and as James Madison did in Federalist 40, that there is some other arrangement that will achieve the ends of the Union better than the Articles of Confederation. The lawmaker behind the Articles chose to convey its judgment about the best way to achieve the ends of the Union through language that was, as the originalists have informed us indefatigably, understood a certain way by its contemporaries. The semantic content cannot be ignored or escaped. In fact, the semantic content of the leges as it would have been understood by a contemporary is how we determine how we obey the lawgiver. And Webster offers a clear picture of the semantic content of Article XIII.

To propose a change in the Articles of Confederation separate and apart from the procedure outlined in Article XIII, to say nothing of pursuing the course outlined by such a proposal, is to disobey the authority of the lawgiver. James Madison’s arguments in Federalist 40, therefore, are not only beside the point; they run the risk of immorality. Congress, in the resolution of February 21, 1787 called for a convention to determine “such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” Such a resolution in and of itself, however, was insufficient to authorize the plan of wholesale replacement urged by Madison in Federalist 40.

And Madison, I think, frankly admits as much. He concludes Federalist 40 with a veritable ode to disobedience of the letter of the lex in the name of ius and the bonum commune:

The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.

Such rhetoric would not be out of place in the writings of any adherent to common-good constitutionalism. But if it did appear there, it would no doubt be met with the charge that it is wholly inapposite. We owe obedience to superiors and their authority, and in this case the superior, through Article XIII, issued a lex expressing its considered judgment that a certain procedure for alteration (but not replacement) of the Articles of Confederation is the lawful means of alteration. Madison’s argument was therefore a case for disobedience, a case for tearing up the Articles of Confederation. To put it another way, “confidential servants” of the United States owe obedience to the authority of the legislator just as much as judges do.

Now, someone rooted in the classical tradition might object and say that everyone since 1787 has acted in accordance with the understanding that the Constitution, not the Articles of Confederation, was the foundational document for the federal government. Indeed, one may say that almost every aspect of our political and legal existence is predicated on an order under the Constitution, not the Articles. But the natural reply is this: so what? Article XIII leaves no room for custom and no room for what amounts to reliance interests. One may reply further that the supposed reliance is actually one act of disobedience to the authority that promulgated the Articles after another.

In other words, Madison’s arguments in Federalist 40 are precisely the sorts of arguments that are inadmissible under the natural law insofar as they counsel disobedience to the authority of the lawmaker of the Articles. The question for originalists, therefore, is not how a given provision of the Constitution is to be interpreted, but whether the Constitution should be interpreted at all. Under the principles advanced by the originalists against Vermeule’s Common Good Constitutionalism, it seems to me that there is a strong case that the Constitution was not properly adopted and that the Articles of Confederation remain the governing instrument for the Republic, which does not include most purported states, including Indiana.

The originalists’ blindness to this problem is surprising, since the principles they have marshaled against common-good constitutionalism provide a clear exposition of precisely the issue with the adoption of the Constitution against the clear lex of Article XIII of the Articles of Confederation. I wish I had a good idea of where to go next. But it is, I confess, not my primary concern. For the moment, I am going to be reading the Northwest Ordinance and any other relevant acts of the Continental Congress with great attention to try to figure out how local government in what used to be Indiana works.

Popular sovereignty and the oath theory

In October 2021, Judge William Pryor of the Eleventh Circuit (not the Fifth) gave a speech to the Heritage Foundation. Judge Pryor is a prominent conservative judge, and he is perpetually on the list of candidates for elevation to the Supreme Court in a Republican administration. His speech, “Politics and the Rule of Law,” is a long argument in favor of originalism. In this speech, in an attempt at Scaliaesque wit, he inveighed against “Living Common Goodism.” Among his assertions was that the oath imposed by Article VI of the Constitution—the oath to “support this Constitution”—creates a binding moral duty in favor of originalism.

Professors Evan Bernick and Christopher Green have conducted a lengthy analysis of the object of the constitutional oath, arguing that, while there might be exceptions, the oath prescribed by Article VI of the Constitution requires originalism in some way. Professor Joel Alicea, author of a recent essay attempting to find another basis to make originalism morally obligatory, recognizes that even Bernick and Green’s argument requires moral evaluation of the Constitution. However, others have found Professors Bernick and Green’s claims about the oath to be just the ticket, including John Ehrett and C’zar Bernstein. (Judge Pryor’s talk cited Bernstein in particular on this point.)

There is, I think, a very understandable desire on the part of originalists to find some binding moral basis for their jurisprudential preferences. The oath seems to be, for some, including Judge Pryor, a mechanism to moralize a certain interpretation of the Constitution. Most stop here, apparently revolting from the consequences of this when applied to judges and federal officers. But for rhetorical-forensic purposes, simply asserting that originalism is a moral duty is sufficient. But to move into a more obvious moral dimension (I would not suggest that law and morality are ever actually distinct) means just that: moving into a moral dimension. And there are of course consequences to this.

For Catholics—and those interested in an Aristotelian-Thomistic moral philosophy—the oath is well understood. Indeed, going back to St. Ambrose and St. Jerome, one can find nuanced understandings of oaths and their consequences. One important theme is that superiors can commute or dispense oaths sworn by their inferiors. This has always included the pope (or the delegates of the pope exercising his power). But the pope is not the only person, in my view, who can commute or dispense an oath. I believe that, on Aquinas’s account of popular sovereignty, the people, legislating through custom, can commute or dispense an oath.

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In the discussions of the Article VI requirement of an “Oath or Affirmation” to support “this Constitution,” the emphasis is often on “this Constitution.” There is not as much emphasis on “Oath or Affirmation.” Professors Bernick and Green recognize that there are situations in which oath-breaking might be not only justifiable but even necessary. But on the whole, the proponents of an originalism required by the oath want to talk about language and the nature of the Constitution. It is assumed, particularly by popularizers like Ehrett and Bernstein, that that oath is generally morally binding except in emergency circumstances. This is enough for their purposes: originalism is morally obligatory because oaths are morally binding.

I want to be clear that I do not share this view, nor do I think a Catholic can safely hold it. Some of the proponents of the view express clearly that they believe that an oath required by Article VI could conceivably bind someone to immoral acts. For example, C’zar Bernstein, writing in National Review, suggests that judges are bound by the Article VI oath to “support and faithfully interpret a written instrument that may or may not conform with the moral law or any particular conception of the ‘common good.’” The problems for a Catholic with this view are too numerous to discuss. (A brief review of the propositions concerning civil society and ethics more generally infallibly condemned by Bl. Pius IX in Quanta cura and Syllabus would highlight at least some of them.) Nevertheless, I will assume for our present purposes that the Article VI oath is not a moral suicide pact, and that the content of the Constitution is at least arguably conformable to the eternal and natural law. Moreover, I will assume that a Catholic can safely hold the oath theory.

It is certainly true that an oath is not binding in emergency circumstances—that is to say, when an oath would require an unjust result in given circumstances—but are there other circumstances when an oath might not bind? The answer Thomas Aquinas gives in the course of his detailed examination of both oaths and vows is yes. Certainly an oath to do something evil must not be sworn or carried out. But that is not every oath. Some oaths might be contrary to greater goods, and Aquinas tells us that we should not swear them, though we may or may not carry them out. A doubtful oath may be dispensed by one in authority, preeminently the bishop.

But there is a fourth category of oath identified by Aquinas: the oath that is manifestly lawful and useful. This oath, Aquinas tells us, does not admit of a dispensation, but a commutation. Aquinas analogizes it to a change in the law: circumstances may transpire that mean something better for the common good might be done. In these circumstances, an oath may be commuted to do that something better. The Pope, having in Aquinas’s account supreme jurisdiction in the Church (and, at least when he wrote his commentary on the Sentences of Peter Lombard, everywhere else), has the authority to commute oaths. But, Aquinas adds, so too does anyone who has authority over someone else.

And here we reach an interesting point, which I discussed previously. As Professor Alicea has demonstrated—incompletely, in my view—there is a theory of popular sovereignty in Aquinas. The Constitution, according to Professor Alicea and indeed Professors Bernick and Green, is the means by which the People of the United States transfer, under certain conditions, to various public persons their sovereignty, just as the Lex Regia was how the Roman people transferred to various public persons their sovereignty. But according to Aquinas, as I demonstrated a little while ago, the people retain a couple of important rights: the right to withdraw from a tyrant their transfer of power and the right to legislate through custom.

The People of the United States have authority over the public persons to whom they have transferred their sovereignty, retaining (crudely) the right to revolt and the right to legislate through custom. On Aquinas’s account, the people, as the superiors of all the Executive Branch officials and federal judges, have the retained jurisdiction to legislate through custom in such a manner as to dispense or commute the oaths of federal officers. This is, I believe, a significant problem for the oath theory on a Thomistic account.

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An oath is fundamentally an invocation of God to witness a statement (ST II-II q.89 a.1 co.). If it is a statement about past or present events, it is a declaratory oath (ibid.). If it is a statement about future events, it is a promissory oath (ibid.). There are limits to what one can swear about in Aquinas’s account. One swears to confirm contingent facts regarding man, and one invokes God, Who sees all and knows all, as a witness because man lies, forgets, and does not have access to distant places (ibid.). There is no need, therefore, to swear regarding speculative propositions, which receive natural and infallible confirmation by reason, and matters subject to scientific investigation (ibid.).

Aquinas tells us that an oath is fundamentally an act of faith—indeed, of religion—insofar as calling God to witness something is an implicit testimony to His omniscience (ST II-II q.89 a.2 co.; II-II q.89 a.4). But the Gospels, St. Paul, and the Fathers warn against swearing frivolous or wicked oaths (ST II-II q.89 a.2 co. & ad 1). An oath therefore must have three components to be lawful: truth, judgment, and justice (e.g., St. Jerome, In Jeremiam Prophetam lib. I, c. IV, PL 24, 706). Aquinas expounds upon these components: “Iudicio autem caret iuramentum incautum; veritate autem iuramentum mendax; iustitia autem iuramentum iniquum sive illicitum.”—“A rash oath lacks judgment, a false oath lacks truth, and a wicked or unlawful oath lacks justice” (ST II-II q.89 a.3 co.).

A declaratory oath—a statement about the past or present—has to be true. But the Article VI oath is manifestly a promissory oath: the officers “shall be bound by Oath or Affirmation, to support this Constitution” (U.S. Const. art. VI, cl. 3). Luckily, Aquinas explains when promissory oaths are binding, too: “in iuramento quod praestatur de his quae sunt fienda a nobis, obligatio cadit e converso super rem quam aliquis iuramento firmavit. Tenetur enim aliquis ut faciat verum esse id quod iuravit, alioquin deest veritas iuramento”—“in the oath that is made about something to be done by us, the obligation falls on the thing guaranteed by oath. For a man is bound to make true what he has sworn, else his oath lacks truth” (ST II-II q.89 a.7 co.).

But remember truth is only one of the three requirements for a lawful oath: it still must have judgment and justice (ST II-II q.89 a.3 co.). These remain the conditions for a valid oath under the 1983 Code of Canon Law (c. 1199 § 1). Aquinas explains first “Si autem est talis res quae in eius potestate non fuit, deest iuramento discretionis iudicium”—“if this thing be such as not to be in his power, his oath is lacking in judgment of discretion” (ST II-II q.89 a.7 co.). We turn then to judgment: “Si vero sit quidem possibile fieri, sed fieri non debeat, vel quia est per se malum, vel quia est boni impeditivum, tunc iuramento deest iustitia”—“If, on the other hand, it be something that he can do, but ought not to, either because it is essentially evil, or because it is a hindrance to a good, then his oath is lacking in justice” (ibid.). Here, Aquinas is emphatic. An oath that is essentially evil or a hindrance to justice must not be kept (ibid.).

There are a couple of ways that an oath can produce an evil result. First, the oath can be for something intrinsically wicked or something that hinders a greater good (ST II-II q.89 a.7 ad 2). Oaths for intrinsically wicked things are always immoral, both in the swearing and in the doing: “Huiusmodi enim iuramentum a principio est illicitum, differenter tamen. Quia si quis iuret se facturum aliquod peccatum, et peccat iurando, et peccat iuramentum servando”—“For oaths of this kind are unlawful from the outset: yet with a difference: because if a man swear to commit a sin, he sinned in swearing, and sins in keeping his oath” (ibid.). Oaths that hinder a greater good are immoral in the swearing but not the doing (ibid.).

The other way is fundamentally more interesting and perhaps more relevant: “Alio modo vergit in deteriorem exitum propter aliquid quod de novo emerserat, quod fuit impraemeditatum”—“Secondly, an oath leads to an evil result through some new and unforeseen emergency” (ST II-II q.89 a.7 ad 2). Aquinas here cites the example of King Herod. When he promised Salome to give her anything she wanted for her dancing, that was not in and of itself a wicked oath, provided that Salome asked for something Herod could lawfully give her. But when she asked for the head of St. John Baptist and Herod felt constrained to give it to her, that was certainly evil (ST II-II q.89 a.7 ad 2). Here he follows St. Ambrose—who cites not only the case of Herod but also of Jephthah (De officiis lib. I, c.50, no. 255).

A lawful oath that remains lawful—that is, a promise that still has truth, judgment, and justice—has to be followed, right? Maybe. In Aquinas’s treatment of vows, we learn about the concept of dispensation (ST II-II q.88 a.10). In the Treatise on Law, Aquinas explains how laws may be dispensed from (ST I-II q.96 a.6; I-II q.97 a.4). And the reason for dispensations from the law is pretty clear on Aquinas’s account: “lex ponitur respiciendo ad id quod est ut in pluribus bonum, sed quia contingit huiusmodi in aliquo casu non esse bonum, oportuit per aliquem determinari in illo particulari casu legem non esse servandam”—“a law is made with an eye to that which is good in the majority of instances. But since, in certain cases this is not good, there is need for someone to decide that in that particular case the law is not to be observed” (ST II-II q.88 a.10 co.). A person who makes a vow—that is a promise to God to do something (ST II-II q.88 a.1 co.)—becomes a law unto himself (ST II-II q.88 a.10 co.). In most cases, the matter of the vow is good, but in some cases it is evil, useless, or impedes a greater good; therefore, the Church has the power to dispense (or commute) a vow (ibid.).

As with vows, so with oaths: “Quod autem aliquid sit inhonestum vel noxium, repugnat his quae debent attendi in iuramento, nam si sit inhonestum, repugnat iustitiae; si sit noxium, repugnat iudicio. Et ideo, pari ratione, etiam in iuramento dispensari potest”—“Now anything morally evil or hurtful is incompatible with the matter of an oath: for if it be morally evil it is opposed to justice, and if it be hurtful it is contrary to judgment. Therefore an oath likewise admits of dispensation” (ST II-II q.89 a.9 co.).

Dispensations necessarily apply only to promissory oaths (ST II-II q.89 a.9 ad 1). The reason for this is clear: “Sed ad hoc se extendit dispensatio iuramenti ut id quod sub iuramento cadebat, sub iuramento non cadat, quasi non existens debita materia iuramenti, sicut et de voto supra diximus”—a dispensation “implies that what hitherto came under an oath no longer comes under it, as not being due matter for an oath” (ibid.). A declaratory oath covers something past or present, which is to say something that has “a certain necessity,” and therefore a dispensation would cover not merely the matter of the oath but also the act (ibid.). A promissory oath, on the other hand, covers something about the future, which can change (ibid.). A dispensation therefore covers the matter, not the act.

Aquinas considers three conditions for a dispensation (ST II-II q.89 a.9 ad 3). First, when an oath is manifestly contrary to justice; second, when it impedes a greater good; and third, when the matter is doubtfully right or wrong (ibid.). In the first case, such as when a man swears to commit murder, he must not carry out the oath (ibid.). In the second case, while it is immoral to swear an oath impeding a greater good (ST II-II q.89 a.7 ad 2), the man who swears it can carry it out or not (ST II-II q.89 a.9 co.). In the case of a doubtful oath, the authority of a prelate—that is, a bishop—is necessary (ibid.).

Aquinas considers a fourth case: “quandoque vero sub iuramento promittitur aliquid quod est manifeste licitum et utile”—“Sometimes, however, that which is promised under oath is manifestly lawful and beneficial” (ibid.). Here he distinguishes between a dispensation and a commutation. “Et in tali iuramento non videtur habere locum dispensatio, sed commutatio, si aliquid melius faciendum occurrat ad communem utilitatem”—“An oath of this kind seemingly admits not of dispensation but of commutation, when there occurs something better to be done for the common good” (ibid.). Aquinas makes two points following this. First, the power to commute an oath belongs preeminently to the pope, having the chief authority in the Church (see also In II Sent d.44 q.2 a.3 exp. text.). Second, “sicut et ad unumquemque pertinet irritare iuramentum quod a sibi subditis factum est circa ea quae eius potestati subduntur”—“Thus it is competent to any man to cancel an oath made by one of his subjects in matters that come under his authority” (ST II-II q.89 a.9 ad 3).

Here, the analogy to law is pretty clear. Aquinas, discussing the change of human laws, tells us: “Ex parte vero hominum, quorum actus lege regulantur, lex recte mutari potest propter mutationem conditionum hominum, quibus secundum diversas eorum conditiones diversa expediunt”—“On the part of man, whose acts are regulated by law, the law can be rightly changed on account of the changed condition of man, to whom different things are expedient according to the difference of his condition” (ST I-II q.97 a.1 co.). An oath might once been manifeste licitum et utile just like a law might have served the common good. But something that serves the common good better might come along.

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The trivial case for a dispensation or commutation is that the pope (or someone on whom the pope has conferred his own authority) dispenses or commutes it. Remember that the Church holds that all validly baptized Christians are part of the Church (c. 204). Historically the Church has claimed jurisdiction over all validly baptized Christians, though in recent years the Church has not emphasized that claim. The pope, as head of the Church, has preeminent power to dispense or commute an oath.

Under the 1983 Code of Canon Law, the pope has conferred this power in many cases to bishops and pastors (cc. 1203; 1196, 1º). As a rule, the power of prelates and pastors is limited to cases where no one is prejudiced by the commutation or dispensation. But even in such cases, the pope retains jurisdiction to commute or dispense the vow or oath. But the Code identifies, particularly with respect to oaths, situations in which by the law itself the oath is not binding (cc. 1201 § 2; 1202, 2º).

And Professor Green, writing at his blog, has characterized this as a “bad conception” of fidelity, pointing toward St. Pius V’s bull, Regnans in excelsis, which, among other things, dispensed Elizabeth Tudor’s subjects from any oaths they had sworn to her. This was not the only dispensation in the context of the English schism (and later heresy). Paul III, when he excommunicated Henry Tudor in the bull, Eius qui, dispensed the oaths of Christian princes to assist Henry (Mag. Bull. Rom. lib. I, sec. 15, pp. 706–07). But it is impossible to see that this is a “bad conception” of fidelity for a Catholic. It is simply the conception of fidelity on the Catholic account: the pope—to this very second—claims the power to dispense oaths, which he has conferred in some cases on bishops and pastors. One might say that this means that Catholics cannot hold the oath theory, and I fully agree: no Catholic can safely hold the oath theory. But I said at the outset that I would make assumptions in favor of the theory, including the assumption that it is not erroneous

But is the pope the only person who can commute or dispense from an oath? Recall that “ad unumquemque pertinet irritare iuramentum quod a sibi subditis factum est circa ea quae eius potestati subduntur”—“it is competent to any man to cancel an oath made by one of his subjects in matters that come under his authority” (ST II-II q.89 a.9 ad 3).

Aquinas articulates a theory of popular sovereignty (cf. ST I-II q.90 a.3). Siding with Azo and the minority opinion in a debate about the Lex Regia and the retained sovereignty of the Roman people, Aquinas holds more or less that the people, having entrusted the care of the commonwealth to a public person, retain some jurisdiction. First, they can throw off the rule of that public person if he becomes tyrannical: “Primo quidem, si ad ius multitudinis alicuius pertineat sibi providere de rege, non iniuste ab eadem rex institutus potest destitui vel refrenari eius potestas, si potestate regia tyrannice abutatur”—“If to provide itself with a king belongs to the right of a given multitude, it is not unjust that the king be deposed or have his power restricted by that same multitude if, becoming a tyrant, he abuses the royal power” (De regno lib. 1 c.7).

Second, the people retain the authority to legislate through custom: “Si enim sit libera multitudo, quae possit sibi legem facere, plus est consensus totius multitudinis ad aliquid observandum, quem consuetudo manifestat, quam auctoritas principis, qui non habet potestatem condendi legem, nisi inquantum gerit personam multitudinis. Unde licet singulae personae non possint condere legem, tamen totus populus legem condere potest”—“For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, than does the authority of the sovereign, who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make laws, yet the whole people can” (ST I-II q.97 a.3 ad 3).

The people, therefore, retain a right to revolt against a tyrant and the right to legislate through custom. Other than that, the public persons to whom they have transferred their sovereignty exercise the public authority: “Ordinare autem aliquid in bonum commune est vel totius multitudinis, vel alicuius gerentis vicem totius multitudinis. Et ideo condere legem vel pertinet ad totam multitudinem, vel pertinet ad personam publicam quae totius multitudinis curam habet”—“Now to order anything to the common good, belongs either to the whole people, or to someone who is the viceregent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has care of the whole people” (ST I-II q.90 a.3 co.). And the reason is clear: you need coercive power to enforce the laws, and only the whole people or their chosen delegate has coercive power (ST I-II q.90 a.3 ad 2).

More than this, the delegate of the people has the power to dispense from the law: “ille qui habet regere multitudinem, habet potestatem dispensandi in lege humana quae suae auctoritati innititur, ut scilicet in personis vel casibus in quibus lex deficit, licentiam tribuat ut praeceptum legis non servetur”—“he who is placed over a community is empowered to dispense in a human law that rests upon his authority, so that, when the law fails in its application to persons or circumstances, he may allow the precept of the law not to be observed” (ST I-II q.97 a.4 co.). And Aquinas later explains reinforces this point (ST II-II q.89 a.9 co. & ad 3). But this is simply because the public person has the care of the whole community and is responsible for ordering the community to the common good. (ST I-II q.90 a.3 co.). Remember, though: the public authority has authority to order the commonwealth to the common good only as vice gerens of the totus multitudinis (ibid.). And that authority is subject to some important limitations, as we have seen, including the power to legislate (and nullify and interpret law) through custom (ST I-II q.97 a.3 ad 3).

Remember, too: as the law goes, so go oaths (ST II-II q.89 a.9 co.). The whole people, therefore, has the authority to commute or dispense oaths. But this must be squared with the two retained powers that the people have: the power to revolt and the power to legislate through custom. Revolution does not seem too compatible with oaths. Certainly a revolt would nullify the oath simply because the matter of the oath would have changed (ST II-II q.89 a.9 ad 1). The matter of the oath “I promise to apply the Constitution a certain way” changes when the people revoke the Constitution through a revolution.

But what about legislation through custom—that is, when the whole people through their actions legislate a certain way? Aquinas tells us: “Sicut autem ratio et voluntas hominis manifestantur verbo in rebus agendis, ita etiam manifestantur facto, hoc enim unusquisque eligere videtur ut bonum, quod opere implet”—“Now just as human reason and will, in practical matters, may be made manifest by speech, so may they be made known by deeds: since seemingly a man chooses as good that which he carries into execution” (ST I-II q.97 a.3 co.). Human speech can change the law because it expresses the judgment of reason, and because deeds can do the same thing, deeds can change the law per exteriores actus multiplicatos (ibid.).

This option seems entirely compatible with oaths. Just as the pope and the public person entrusted with the leadership of the commonwealth can dispense oaths through speech (or writing), the pope and the public person entrusted with the leadership of the commonwealth can dispense oaths through repeated exterior acts that declare their reason or will (ibid.). The whole people can dispense oaths, pursuant to what I might call its reserved jurisdiction, with respect to subordinates of the whole people (cf. ST I-II q.97 a.3 ad 3; II-II q.89 a.9 ad 3). How do they express this? Through custom (ST I-II q.97 a.3 co.).

What does this look like? Custom is nothing more than repeated acts expressing reason and will. (ST I-II q.97 a.3 co.). Acquiescence in a practice over a lengthy period is custom of a kind, just as behavior in a certain way over a similar period is custom. If the people permit a certain practice by their representatives or judges over a lengthy period, this would become a law—or interpret or abolish law—on Aquinas’s account of custom. Nothing in this process seems to exclude the acts that a sovereign may take regarding the oaths of his subordinates. And when the people tolerate again and again certain acts by its subordinates—let us say what we mean: when the people tolerate non-originalist decisions or actions by government employees in the various branches of government—it may be said that the people have commuted or dispensed the oath of their subordinates to “this Constitution.”

In my view, this account of popular sovereignty poses a significant problem for the oath theory. The people give most of their authority to the government through a document like the Constitution, but not all. And they retain the authority to legislate corporately through custom. This means that, even if the oath theory were correct and morally safe, the people can still dispense or commute the oath. The power to dispense or commute the oath throws the whole theory, in my view, into turmoil. The oath theory only works if “this Constitution” means the original public meaning of a given Constitutional provision. If the people can change that through custom, then the edifice falls apart.

If one wants to hold—against Azo and Aquinas—that the people have transferred all their authority to the government, retaining none for themselves, not even revolution or custom, then the oath theory may well be plausible given the assumptions I have made here. (Objectively, it is not plausible on the moral grounds I mentioned above, insofar as it purports to deny perennial teachings of the Church.) One may even reject the idea that the Constitution implicates popular sovereignty at all. But that argument would need to be worked out in some detail, not least since I think Professor Alicea is correct when he connects fundamentally the idea of popular sovereignty and the Constitution.

One could also reject custom as a means of making, interpreting, or abolish law. But here we depart so thoroughly from the Thomistic concept of law—indeed, from the entire understanding of law in the classical tradition—that one is forced to accept such a rejection as a parting of the ways more than a response. The differences are simply too large to be overcome and it must be acknowledged, cheerfully and charitably, that there is nothing really to be said.

The strong gods and the Ukraine

The Russian invasion of the Ukraine has preoccupied not only political leaders around the world but also the world’s media. Whether it is President Volodymyr Zelenskyy’s stirring speeches from an embattled Kiev, Russian President Vladimir Putin’s strange, socially distanced meetings and speeches from Moscow, or combat footage, there has been nearly around-the-clock coverage of the war. Obviously there has been no shortage of commentary about what the war means.

One thread of such commentary seeks to fight the war on the home front. The argument, repeated in magazines, on blogs, and on Twitter, is that Vladimir Putin’s actions in the Ukraine reflect poorly on postliberal conservatives and populists. Some have gone so far as to proclaim that the postliberal, populist moment is dead as a result. Instead, the valiant defense of the Ukraine by Ukrainians, supported by western forces, has awakened—and will revitalize—western liberal democracy.

Certainly there has been a crisis of confidence in western liberal democracy in recent years. The rise of credible nationalist, populist politicians in the United States and Europe, alongside a vibrant intellectual scene, has left liberals feeling apparently embattled. The election of Donald Trump in the United States was the most serious political event, but the rise of European populists like Hungary’s Viktor Orbán have caused much anxiety among the liberal intelligentsia. And while the forces of a postliberal right have been consolidating and advancing, liberalism itself seems to have lost its way.

R.R. Reno puts it like this in a 2017 First Things essay: “Our political establishments have inherited the postwar imperative of disenchantment.” Liberal democracy has done without such concepts as faith and nationality for a long time, but in recent years things seem to have gotten weirder and nastier. All traditional institutions and concepts must be disenchanted—and dissolved. The unbounded self is freed from any claims from any concepts and institutions that might impose a meaning or restriction that is not freely accepted. (Charles de Koninck explains why in his Principle of the New Order.) Reno was especially prescient when he predicted, “In the place of the strong gods of traditional culture, the globalized future will be governed by the hearth gods of health, wealth, and pleasure. Our high priests will be medical experts, central bankers, and celebrity chefs.”

The idea one finds lurking around the edges of some commentary—though some, like Francis Fukuyama, have said it outright—is that the civilizational conflict between the liberal democratic west and authoritarian Russia playing out in the Ukraine will revitalize western liberal democracy. To put it in Reno’s terms: western liberal democracy will rediscover its strong gods. We will stop the endless process of disenchantment and dissolution, we will recover our faith in certain metaphysical and moral concepts that kept liberalism on track. The detour into woke politics—what some for lack of a more precise term call “cultural Marxism”—will finally end.

At the same time, liberals have chosen this moment to attack prominent postliberal and populist voices on the right. From the overheated commentary on the internet, one might think that Tucker Carlson, J.D. Vance, and Sohrab Ahmari have invaded the Ukraine, not Vladimir Putin. As near as I can tell, their great crime is thinking that western involvement in the Ukraine poses unacceptable risks of direct military conflict between NATO countries and Russian forces. Given Putin’s bellicose rhetoric—he started the war by threatening the use of nuclear weapons and nothing so far indicates he has been kidding in his public statements—there is some chance that such direct conflict would involve nuclear weapons. (Moreover, elite voices have not exactly proved that they’ve got a great grasp of events over the past two years. Why should they start being right now?)

The eminent Thomist Edward Feser lays out a careful argument on his blog that the Russian invasion of the Ukraine is an unjust war and so too would be involvement by NATO. The risk of escalation to nuclear weapons is simply too great, even with respect to proposals for things like a no-fly zone or limited presence of NATO forces. The great Cardinal Ottaviani saw clearly that scientific weapons fundamentally changed the calculus of just-war doctrine, even defensive war against unjust aggression. The days of two armies facing off in a field, even in a particularly horrible manner, as in the Great War, are over. The risks of modern, scientific warfare are too great to justify war except in extremely rare circumstances. The voices opposed to NATO involvement cannot be condemned, therefore, except on grounds altogether secondary to the question of justice.

At any rate, the broad outlines of the narrative are fairly obvious. Leading skeptics of liberalism are skeptical of greater western military involvement in the Ukraine. The play is to tar them as dupes—or worse—for Vladimir Putin. After all, we already know that postliberals aren’t on board with the current state of liberalism, the liberalism of endless disenchantment and dissolution. They must be on Putin’s side altogether. And at this moment, there are few places less popular than Vladimir Putin’s side. Reno himself predicted this discourse in 2017: “The postwar consensus now tells me that I must choose between pornographic transgression and Putinism, just as it is telling the young French woman to choose between multicultural utopianism and fascism.”

But in all of this there is a consistent refusal, especially in western political and media discourse, to grapple with the Ukrainians’ concept of their defense against Russia. While liberal elites in Washington, Paris, and Brussels have treated the Ukraine like a laboratory for NATO’s grand strategy and civil-society NGOs, it is far from clear that Ukrainians see their conflict in terms of the defense of 2020s liberalism. Indeed, the Ukrainians’ concept of the war seems likely to awaken strong gods—but not the liberal democrats’ strong gods.

President Zelenskyy’s appeals to and on behalf of the Ukrainian nation have been broadcast in the West regularly since the Russian invasion. Indeed, well before the Russian tanks started rolling, President Zelenskyy seems to have pondered what it means to be Ukrainian. Since the invasion, he has given widely admired speeches couched in terms of a united Ukrainian people fighting for its right to exist peacefully. Some have been surprised that a former actor has made such a turn, though no one familiar with Ronald Reagan or indeed Donald Trump could be too surprised by it.

He is far from alone in seeing the conflict in fundamentally national terms. Patriarch Sviatoslav of Kiev, the head of the Ukrainian Greek Catholic Church, the successor to the great Josyf Slipyj, put the matter in these terms on February 24: “It is our natural right and sacred duty to defend our land and our people, our state and all that is dearest to us: family, language and culture, history and the spiritual world!” Sviatoslav echoed President Zelenskyy’s statements about a peaceful Ukraine that did not seek to antagonize Russia, but by the same token would not bow down to any aggression.

There is, unfortunately, a darker side to Ukrainian nationalism, which has been cynically exploited at times by western powers. Groups like Right Sector and the Azov Battalion have strong currents of extreme right-wing ideology, but, in the days of the 2013 Euromaidan protests, the 2014 “Revolution of Dignity” against the Moscow-aligned Viktor Yanukovych, and the battles over the Donbass separatist regions, these far-right movements were useful. The Azov Battalion has been fighting Russian forces during the present war, especially on the southeastern front.

But it is unnecessary to dwell on the dark side of Ukrainian nationalism. Ukrainians—and people around the world—have been inspired by President Zelenskyy and men and women like Patriarch Sviatoslav, calling their fellow Ukrainians to defend their land, their people, their unique culture, and their history. These calls, of course, lead me to wonder whether the war in the Ukraine is a real struggle for liberal democracy against postliberal, populist voices.

If an American or Western European politician invoked “our natural right and sacred duty to defend our land and our people, our state and all that is dearest to us: family, language and culture, history and the spiritual world,” one doubts that he or she would be greeted with the same enthusiasm that has welcomed the Ukrainian resistance to the Russian onslaught. Again Reno: “We are socialized to believe that we have a fundamental moral duty to resist populist calls for a more nationalist politics.” He goes on to say, “A politician or public figure who stands for something strong, whether it’s nationalism or even traditional morality, invariably gets described as ‘authoritarian.’”

Indeed, there are plans afoot in the European Union to punish Hungary and Poland financially under the guise of rule-of-law standards. Certainly Viktor Orbán and Andrzej Duda have long given liberal democrats heartburn, but it is impossible to see that their forthright populism is really all that different than the patriotic nationalism coming from the Ukraine. No doubt the Hungarians and the Poles have noticed. President Zelenskyy is the idol of Europe—President Emmanuel Macron of France released a batch of photos showing him dressed down, just like Zelenskyy—and the EU is hitting Hungary and Poland in the checkbook.

President Zelenskyy is certainly winning the information war in the west. And this leads me to wonder if the liberal voices are right, if the war for the Ukraine will result in western liberal democracies being revitalized with liberal-democratic values. Or will the calls for a united Ukrainian nation be taken up in countries that have seen the complete disenchantment and dissolution of concepts like “nation” and “unity.” It is often said (and often attributed to Alasdair MacIntyre—though I have been told subsequently it actually comes from Stanley Hauerwas) that no one dies for the telephone company, yet, as Reno noted going on five years ago, that is exactly what liberalism has asked. The bravery of the people of the Ukraine points toward a different way.

The defense of the Ukraine—so far from serving as a cudgel for liberals to beat postliberals and populists with—may well provide a rallying cry not for liberalism but for populism and nationalism. The ideas and values being defended against Russian aggression are not necessarily the values of liberal democracy in 2022. But they are being defended valiantly. The liberals who point toward the Ukraine as an example of all that is best and noblest about the west may well find that people agree with them.

Dobbs/Schmitt

It appears that the originalist position in the Dobbs case is to remove the federal government from the debate over abortion and return the matter to the states. I have recently criticized this view as morally incoherent, relying on the Lincoln-Douglas Debates. What I have called “Little Giant Constitutionalism,” in honor of Stephen Douglas’s popular sovereignty, which the originalists in Dobbs echo, is not an answer to a moral crisis. However, there are, I think, other grounds to critique the originalist position in Dobbs—grounds drawn from a surprising source: Carl Schmitt.

I have on several occasions written about Carl Schmitt’s 1960 essay, The Tyranny of Values, which he expanded in 1967 with a lengthy introduction. It is, I think, one of the essential texts for understanding the world in 2021. Value for Schmitt (echoing Martin Heidegger) was an ersatz—for virtue, for the natural law, indeed even for the metaphysical. In Schmitt’s genealogy, the replacement of these concepts by value is fundamentally a nineteenth-century response to scientific positivism. Unfortunately, Schmitt demonstrated, despite the intentions of such a replacement, the logic of value leads to the war of all against all.

The unmediated enforcement of values—and values always must be enforced to be valid—is total war. Schmitt put it like this: “The non-value has no right with regard to the value, and for the enactment of the highest value no price is too high. Here then there are, by consequence, only annihilator and annihilated.” In 1960, Schmitt was appalled by the specter of scientific weapons. In 2021, one finds that technology allows much less concretely destructive enforcement of values—cities are not flattened—but only because the bearer of non-values can be made a non-person, given no right or quarter, without recourse to such weapons.

One of the reasons I find The Tyranny of Values so compelling is that it seems to provide the clearest account for the constant struggle in online spaces, in academic and corporate spaces, and now in some government spaces over any number of ideas. These ideas are taken for the most part as values and fall into the circuit of value-enforcement described by Schmitt. What is cancellation but the enforcement of values on the bearers of non-values? The tyranny of values, the consequences of modern value philosophy, described by Schmitt explains, I think almost perfectly, the merciless, constant struggle against the bearers of non-values by the bearers of the highest values.

One finds Schmitt’s notion of value philosophy and the consequences of values in other places, though. Schmitt’s essay was subtitled Reflections of a Jurist on Value Philosophy and the juristic dimension preoccupied him. One can find this juristic dimension even today and even in the United States. Originalism, for example, was, I think, in part a response to the value-enforcement of the Warren Court. Robert Bork’s seminal 1971 Indiana Law Journal essay, one of the foundational texts of originalism, argues that the Warren Court had imperiled its neutrality and therefore its legitimacy by getting into the business of enforcing certain values in an immediate way. Originalism becomes a way of restraining the enforcement of value. We can short-circuit the war of all against all that the logic of values entails, the originalist argues, by adopting putatively neutral principles based upon the history of the Constitution.

Of course, one ought to pause for a moment at the idea of history conceived in this sense. Charles de Koninck, in a 1940 speech to the American Catholic Philosophical Association, The Principle of the New Order, which is usually bound up with his The Primacy of the Common Good Against the Personalists, lacerated the concept of a scientific history. In De Koninck’s account, the idea of a history divorced from prudence, from practical wisdom, and dissolved into objectivity regardless of the subjective dispositions of the historian is ordered to the emancipation of man considered purely as man. In other words, the idea of a historian judging historical events objectively, through mere knowledge, without considering the rectitude of his own appetites is another step on the road to the emancipation of man as pure artifex and the exaltation of the practical over the speculative. This is not a happy development by any stretch of the imagination.

One does not imagine that the advocates of a scientific study of history—especially as a source for neutral principles to restrain the unmediated enforcement of value by judges—would be altogether cheered to hear of the “profound unity” between such an approach to history and Marxism. Yet De Koninck makes the unanswerable case that such a view of history comes from man turning away from the contemplation of things better than man toward his powers that are most properly his own. All of this, De Koninck shows, is ordered toward the Marxist emancipation of man as man, the exaltation of the unformedness of man. All of this is to say that the philosophical standing and consequences of this modern view of history are almost always overlooked.

At any rate, Schmitt argued that it was the role of the legislator, and not just any legislator, to restrain the “terror” of the unmediated, automatic enforcement of values through laws. No one, Schmitt argues, but the legislator can do this. If the legislator abdicates this supremely difficult and supremely important role, “stopgaps” might arise, “which more or less swiftly become the sacrifices of their thankless role.” By the same token, judges should be very careful, Schmitt contends, before getting into the business of making values valid. To do it thoughtlessly, without understanding what value philosophy entails, is awfully dangerous, as it opens the door to the tyranny of values and the war of all against all. At a certain point, one might think that originalism, especially in the context of the Dobbs case, heeds Schmitt’s warning. I am not so sure.

* * *

Roe v. Wade and Planned Parenthood v. Casey represent attempts by jurists to engage in the unmediated, automatic enforcement of values. The well-known quote from the plurality opinion in Casey reveals the extent to which that opinion represents the unmediated enforcement of value: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (joint opinion of O’Connor, Kennedy, Souter, JJ.). Self-definition is, in the account of the Casey majority, the highest value, which must be made valid through enforcement.

It is perhaps worth noting, at the risk of digressing into distraction, that De Koninck included an appendix on “personal fulfillment” to The Principle of the New Order. It is worth reading it as an answer to the Casey plurality from the Aristotelian-Thomistic tradition, not the modern war of values. For example, De Koninck observes that “[i]t is entirely consistent with humanism to see the first roots, the fundamental reason, for the social character of man not in the common good but in the poetic nature of the individual, in the need to express oneself and speak oneself to others under the pressure of an interior superabundance of pure self.” The terrible consequences of such a view are clear: “In short, as for myself, your reason for being is so that you might participate in my personal life.” We are, I think, compelled to agree with Alasdair MacIntyre once again about Charles de Koninck’s penetrating insight, which has been overlooked by many to our great peril.

The following thirty years have demonstrated the dangers of judges getting into value-enforcement. Instead of settling the matter of abortion through a “legally principled decision[] under circumstances in which [its] principled character is sufficiently plausible to be accepted by the Nation,” Casey, 505 U.S. at 866 (joint opinion), the Supreme Court became the forum for each sides of the abortion debate to attempt to enforce their values on the other, which necessarily entailed a majority of the Court enforcing its values on the whole country. And, as Schmitt warned, for the highest value, the highest price is not too high. No one can say that the unity and order of the United States has been improved by the Casey decision.

Seen in this light, we are forced to agree with Schmitt. When judges make values valid without a clear understanding of the philosophy of value, the consequences are frightening. The plurality’s vision of the highest value has been contested and revalued and nullified since 1992. We have had thirty years of national debate without any clear resolution and with increasing fervor on both sides. Into this situation, the originalists offer, through Dobbs, a way out for the Court. Overrule Roe and Casey and hold that the Constitution is silent on abortion. It is, therefore, a matter for the states. The Court can live up to Robert Bork’s vision—a neutral principle can restrain the immediate enforcement of value and restore the Court’s legitimacy.

However, Schmitt would say that only a legislator, and no ordinary legislator, can rectify this situation. Perhaps the Court, in an act of extraordinary jurisprudence, will adopt the personhood argument set forth by John Finnis, Robert P. George, and Josh Craddock (among others), and hold that the Fourteenth Amendment represents that legislative act. Maybe few would buy this originalist argument and instead take it as an act of legislation. But in the confused little-c constitution of 2021, there is no obvious reason why the Supreme Court could not step into the role of a Solon and hand down a law intended once and for all to restrain the enforcement of value. But this seems unlikely. Most originalists do not agree with Finnis, George, and Craddock and prefer the idea that the Constitution is silent on this point. Therefore, the states are left to work it out for themselves.

And this is the problem. We see already that this measure, which is a stopgap measure, will fail as Schmitt tells us that all stopgaps must fail. Already we hear that Gavin Newsom, governor of California, and other leading politicians in that state intend to make California an abortion “sanctuary” if the Supreme Court overturns Roe and Casey. This means in concrete terms that California will invite women who live in states where abortion is banned to come to California for the sake of having an abortion, using some of its $31 billion budget surplus to subsidize procedures, travel, and lodging to ensure access to abortion for those women. This too is the immediate enforcement of value, and not merely in the territorial confines of California.

And so on and so forth. Other states, inspired by California, may adopt similar proposals, even if they are not sitting on such reserves of cash. After all, the highest price is not too high a price to pay for the highest value. No doubt states on the right will come up with competing public policy proposals to try to make abortion less attractive for their citizens. Ryan T. Anderson, president of the influential Ethics and Public Policy Center, has said as much. There is no reason why they could not try to enforce these values on California through some mechanism. Already the familiar pair emerges: value/non-value. The inevitable consequences cannot be far behind.

The attempt to escape the tyranny of values through the ostensibly neutral principles of originalism is doomed to fail. It is in fact not really even an attempt, so much as a change of standpoint. The process of valuing and devaluing and revaluing continues. The values must be made valid and so they will be in fifty statehouses and fifty state supreme courts, to say nothing of the attempts to resurrect Roe and Casey through federal legislation. The terror of the unmediated enforcement of values will stalk on.

Alasdair MacIntyre goes to the Laval School

It is an annual ritual for Alasdair MacIntyre to give a talk at the fall conference hosted by the Center for Ethics and Culture at the University of Notre Dame. This year was no different. The theme of the conference was “human dignity in a secular age.” Despite MacIntyre’s advanced age and the ongoing situation with COVID-19, MacIntyre gave his yearly talk on Friday, November 12. The talk, held in the ballroom at Notre Dame’s Morris Inn, was standing room only. For those who were not in South Bend—or who were driven from the ballroom by the crowd and the stifling heat—the talk was live-streamed and can be viewed at your leisure under circumstances more comfortable than those available at the Morris Inn.

And you should view it. The early reviews have been nothing less than glowing. At The Postliberal Order, a new and exciting Substack run by Patrick Deneen, Gladden Pappin, Chad Pecknold, and Adrian Vermeule, Deneen has an excellent summary of the talk. For Deneen, MacIntyre rejected “dignity,” the comfortable concept that liberalism usually resorts to in its justifications for any number of fundamentally liberal ideas, and instead held up the “more demanding standard of Thomistic justice.” Deneen observed that MacIntyre “laid bare the contradiction involved in defending human dignity while neglecting the political, economic, and social conditions that make possible human flourishing.”

At Ius & Iustitium, to which I contribute regularly, Rafael de Arizaga notes that MacIntyre’s talk is a turn toward jurisprudence. He argues that, if, as MacIntyre argues, we are to turn away from liberalism’s emphasis on dignity, which is often as not a content-free term that is little more than a justification for liberalism, toward what Deneen characterized as the “more demanding standard of Thomistic justice,” then we need a science of justice. Jurisprudence is that science. (Cf. Isidore, Etym. 5.3.1.)

I might disagree, however, with Arizaga’s sharp distinction between moral philosophy and jurisprudence. Aquinas tells us that habit and power is the intrinsic principle of human acts and law and grace are the extrinsic principles of good human acts (ST I-II q.49 prol.; q.90 prol.). But this is perhaps a narrow argument for specialists. Certainly Arizaga is right that, if our relations with one another—especially our social, which is to say, political, relations with one another—are to be governed not by (mostly content-free) ideas like dignity but by justice, then we certainly need to know what justice is and what it requires.

In his introduction to MacIntyre’s talk, Professor David Solomon likened MacIntyre to a junkyard dog. Perhaps, given MacIntyre’s age, it might be kinder to say that he is an old master, still capable of provoking his audience after all these years, with insights drawn from a long and serious consideration of these questions. One imagines that MacIntyre did provoke his audience, made up as it was of some of the most prominent conservative liberal voices in the country. Indeed, I had the sense while I was at the conference that this year’s Center for Ethics and Culture conference was a retrenchment of the conservative liberal voice. There were some very notable absences from the program, I thought. MacIntyre’s provocation, therefore, was welcome indeed.

* * *

What struck me most was MacIntyre’s reliance on Charles de Koninck’s The Primacy of the Common Good Against the Personalists to make his argument. Longtime readers of Semiduplex—and who isn’t a longtime reader of Semiduplex, honestly—will be familiar with De Koninck’s seminal work. Indeed, anyone who has followed the integralism argument over the past five years will have heard of De Koninck and his little book about the common good. MacIntyre asked the audience at Notre Dame how many of them had heard of De Koninck. About half. A friend, a longtime veteran of MacIntyre talks, noted that MacIntyre does such audience participation for authors like De Koninck and Albert Murray.

MacIntyre’s argument follows, for the most part, De Koninck’s first objection and response in Primacy of the Common Good. There, De Koninck, following St. Thomas, argues that rational creatures are invested with dignity on account of their end, which is to know and love God, the ultimate end of the universe. This has consequences. The most important of which is that man can lose his dignity just as he can lose the attainment of his end. A rational creature keeps his dignity only as long as he remains in the order of the whole and acts according to the order of the whole. To achieve his dignity, man must order his private good to the common good.

This is an extraordinary argument. For De Koninck, dignity is not some inviolable condition that can be invoked against the common good, against order, but it arises from the common good and from submitting to order. Indeed, at the very end of his argument, De Koninck takes the objection head on: a man may be ordered to God, one might say, but he may not be ordered to any subordinate good. His dignity is inviolable with respect to these subordinate goods, and the rational creature can choose among them. De Koninck rejects this, too, arguing that if a superior remains in the order prescribed, then the inferior must submit to the superior, too. (De Koninck draws out another very startling conclusion from this, but I won’t spoil everything.)

In his influential manual, Thomistic Philosophy, Henri Grenier, another Laval School Thomist, describes personalism as the idea that man considered as a person has a dignity such that his end in the natural order is not subordinate to the end of civil society. (Considered as an individual, man is part of civil society and related to it as a part to the whole.) Grenier describes several issues with this view, of which I will mention two. First, the end of civil society, temporal happiness, is the greatest of all natural goods. Second, subordinating the common good to the private good of an individual is individualism.

Grenier observes that there is nothing inconsistent with subordinating an individual’s good to the end of civil society—temporal felicity. De Koninck, however, takes this farther and attacks the very core of the personalist argument. The dignity that they use to dissolve the person’s subordination to the common good, De Koninck argues, comes precisely from the rational creature’s subordination to that common good (and any subordinate goods superior to his own that are themselves subordinated to the common good). One loses this dignity as soon as one attempts to assert it against order.

A word should be said, too, about the distinction between objective and subjective right that Grenier outlines elsewhere in Thomistic Philosophy, which seems to have some bearing on this argument. Right is the object of justice, but it may be taken in one of two ways: objective right and subjective right. Subjective right—that is to say, right as inviolable power of doing something—taken as right in the strict sense, as most moderns do, leads the juridical order to being ordered to liberty, not the common good. However, if objective right—that is, that which is due to another—is taken as right in the strict sense and the foundation, therefore, of subjective right, the whole juridical order is ordered to the common good. There is, therefore, a connection, it seems to me, between the disordered concept of dignity of the personalists and the modern error that defines subjective right as right in the strict sense.

MacIntyre’s emphasis on the Thomistic account of justice in opposition to the modern concept of dignity is, therefore, a call to reject subjective right as right strictu sensu and return to the concept of objective right. The idea of rights as inviolable powers is corrosive to the common good, as Grenier demonstrates. One might say that the liberal claim is to assert that dignity serves as the title for an inviolable subjective right, which may be set against the common good. Objective right, with its focus on what one is owed from another or owes to another, resists this claim.

* * *

One can see why liberals are so fond of dignity as a concept, particularly in the personalist formulation that, as MacIntyre notes, was so popular after the Second World War. Claims of human dignity in the personalist conception dissolve man’s subordination to the common good. This is precisely what liberals want, especially in economics, but, as we have seen in recent years, scarcely less in other dimensions. De Koninck argues that this is not dignity. It is the loss of dignity. The society of frustrated tyrants this results in is, in fact, bestial.

MacIntyre’s invocation of De Koninck’s argument represents, as Patrick Deneen argued, a serious challenge to conservative liberals. To the extent that they rely on dignity to do basically what the personalists did, to set the good of the individual man above the common good of civil society, De Koninck demonstrates that their arguments in fact strip man of his dignity. It is only subordinated to the common good that man achieves his dignity. This is why it is essential to adopt instead claims about justice and duty.

One hopes that MacIntyre’s speech encourages at least some of those who were there at Notre Dame or watched it on the internet to go and read Charles de Koninck’s Primacy of the Common Good. While the integralism debates of the last five or six years are scarcely intelligible without De Koninck, the average conservative liberal may or may not have much interest in those debates. However, MacIntyre’s hearty endorsement of De Koninck may well spark such an interest.

Further thoughts on the tyranny of values

Note: Updated to reflect the actual name of the author of the piece, with apologies for the error.

In a recent review of some of Leo Strauss’s books at The Public Discourse, Matthew Franck summarizes an argument from Strauss’s Natural Right and History. He tells us that Strauss explained how “[t]he ideas that the truth about the human condition is radically contingent on history (historicism) and that we can speak rationally only about facts and not at all about ‘values’ or moral principles (positivism) lead inexorably to a failure of all conviction, and ultimately to nihilism, which in turn eventuates (in Strauss’s memorable words) in ‘fanatical obscurantism.’” Franck goes on to draw this thread out of later works by Strauss and James W. Ceaser. The historicism and positivism of the academic discipline of political science, he tells us, leads to irrationality and cynicism about political life.

Franck makes this argument in the context of a critique of cancel culture on university campuses. Because political science—and many other disciplines besides—is in the grips of historicism and positivism, political scientists are incapable of talking rationally about one’s preferences. This results in a fanaticism that, he says, finds expression primarily in the illiberal actions he details. Invitations rescinded, professors hounded, careers ended. Professors, he argues, ought to be resisting the radicalism of their students, offering a moderating influence.

I am not an astute observer of professional political science and the debates that are internal to the profession. However, it is impossible to be unaware of cancel culture, even if figures in regime media would deny its existence. And certainly there is something very real about the “fanatical obscurantism” that routinely tries to enforce a particular mode of thought wherever it goes, whether that’s college campuses or large corporations or school boards. One would be hard pressed to call it rational, too. And certainly one suspects that the academic classes are in some significant part responsible for the emergence of a new Jacobin class.

However, I was struck by the observation that values are opposed to positivism, with the implication that if we could return to talking rationally about values we could escape the crisis. Carl Schmitt, following Max Weber and others, explains how that is almost exactly wrong in The Tyranny of Values. (The pamphlet started as a lecture Schmitt delivered in 1959 at a conference in Ebrach, West Germany. He published it privately in 1960, and then again, in a Festschrift, with a lengthy introduction, in 1967.) In The Tyranny of Values, Schmitt demonstrated precisely that values are a “positivistic ersatz for the metaphysical.” In this, he follows Martin Heidegger. To be sure, in this account, values are opposed to the value-free scientific positivism that Franck seems to have in mind. But, Schmitt tells us, even if values are set in opposition to scientific positivism, they do not provide an escape hatch from irrational fanaticism. They do the opposite, in fact. They plunge individuals into the same abyss of nihilism.

* * *

I have written here and elsewhere on other occasions about The Tyranny of Values. It has gotten some attention, too, in publications such as American Affairs. There, Blake Smith argues that The Tyranny of Values is Schmitt’s final reckoning with Leo Strauss’s critique of The Concept of the Political. The Tyranny of Values is one of the essential texts for the present age. The upshot of Political Theology, an extended meditation on a remark by Donoso Cortés, is obvious to anyone with eyes: political concepts are secularized theological concepts. And they are becoming less and less secularized. Likewise, the friend-enemy distinction discussed in The Concept of the Political plays itself out on small states and large stages alike on an almost hourly basis. Yet in comparison to these texts, The Tyranny of Values, no less powerful in its insight, is relatively obscure.

The positivism of values in Schmitt’s account is, perhaps, where the trouble really begins. Perhaps that is not the most precise way of putting it. Values were a response, and it was by and large a 19th century response, to “causal-legal and, therefore, value-free science” that threatened, according to Schmitt, human freedom and responsibility. How then to maintain that human freedom and responsibility? Schmitt turns from Martin Heidegger to Max Weber here. The perfectly free individual sets values with his decisions about those values. This certainly maintains the free and responsible human being in the face of inexorable causality. But this pure subjectivity leads to the crisis that preoccupies Schmitt for the remainder of the essay, however.

The crisis becomes manifest in the consequences Schmitt draws out of the concept of values. One startling one is that values are only place-values in a value system, assessed from a given standpoint. Even the highest value—Schmitt here uses God as an example, but one can imagine many others—is still a value and has only the value that the system gives it. What matters for the logic of values on Schmitt’s account is that the value is a value first and foremost and only secondarily the highest value. But once something becomes a value and indeed a place-value it is subject to revaluation and readjustment from different standpoints, at different points of attack.

Value logic is an inherently aggressive thing. This is the second important consequence of a philosophy of values. Schmitt begins The Tyranny of Values by observing that “value is not, rather it holds.” Now we know also that a value “only ever hold[s] for something or for someone.” I am lying—to you, to myself, to anyone—if I say that I hold a given value without making it valid, without imposing it on someone or something. More than this, when I set a value, I necessarily devalue, raise in value, declare nonvalues, and valuize. “The compulsion to validity of value is irresistible, and the strife of those who value, de-value, raise in value, and valuize, is unavoidable.” Value logic is, therefore, the “eternal battle of values and of worldviews, a war of all against all . . . .” Values must always and everywhere be made valid, they must be imposed—on someone or on something. Each individual, in perfect freedom and subjectivity, sets values and imposes them.

We have not, with a turn to values and the inevitable war of all against all that the turn entails, escaped scientific nihilism. Schmitt notes that even assertions of objectivity of values do nothing but stoke the conflict. Indeed, Schmitt argues that the promise of tolerance, of subjectivity, of neutrality made by value philosophy converts, immediately, with the flip of a switch, into enmity, and all the vertiginous horror that enmity implies, as soon as the question of making values valid is raised concretely. And it is always raised concretely. The nihilism opposed to human freedom and responsibility emerges where we least expected it—indeed, in the fortress we built against its invasion.

Unsurprisingly Schmitt finds little hope in all this. That is, the philosophy of value was brought to bear as a defense against a scientific positivism, but it is unlikely to achieve that goal. In the 1967 introduction, Schmitt wryly remarks that the “theologians, philosophers, and jurists” who had seen in values “the salvation of their existence as theologians, philosophers, and jurists, namely salvation from an irresistible advancing natural scientificity” would be disappointed. The transformation of the bases of these disciplines, Schmitt holds, into values merely hastens what he calls the general neutralization.

The power of Schmitt’s insight in The Tyranny of Values is precisely his explanation of value logic and his clear-eyed view of the consequences. In the introduction, Schmitt explains that philosophy of values was attractive to jurists, especially in the postwar era, because it was modern and scientific, especially in comparison to the Thomistic and neo-Thomistic natural law jurisprudence that Schmitt identifies as its explicit competitor. Yet it was a “calamitous error” to assume that “goods and interests, goals and ideals” could be saved from “value-free natural scientificity.” Schmitt tells us that “values and value theories are not capable of founding any legitimacy; they can only ever valuize.”

* * *

Values, therefore, are not really the way out of the nihilistic campus conflicts Franck identifies. For one thing, value theories “can only ever valuize” and once something becomes a value, the logic of values takes over. That is to say that the “fanatical obscurantism” that Franck decries is perfectly at home in a system of values. Indeed, it is already at the point of attack, devaluing and revaluing even the highest values. It is already prepared to make its values valid, to impose those values on someone. Schmitt tells us that values open onto the appalling vista of a war of all against all. The question is whether anyone is capable of restraining the unmediated enforcement of values.

One might even ask whether what is happening on college campuses and in large corporations (and in a thousand other places) is not already taking place in a system of values. Every standpoint has a highest value and therefore a highest non-value, and every point of attack strips away the pretended neutrality and relativism of a system of values. The “fanatical obscurantism” might be perfectly at home in a system of values precisely because it is already taking place in a system of values. Insisting on another ranking of values is simply following the logic of values in another direction; it is not, however, escaping that logic. The war of all against all grinds on. Another year, another offensive, everyone stuck in the same stinking trenches.

Perhaps there is another solution, though, which Schmitt hinted at when he identified the Thomistic and neo-Thomistic natural law jurisprudence as the primary competitor to a value jurisprudence. If values are, as Heidegger and Schmitt have it, a positivistic ersatz for the metaphysical, surely a return to Thomism and the natural law (rightly understood) would break out of the crisis. Schmitt tells us, in a roundabout way, that the actions of the Thomistic account are altogether separate from value theory: “[v]irtues one exercises; norms one applies; commands are fulfilled; but values are set down and imposed.” Thomism and the natural law, therefore, break out of the trap set by value philosophy.

The Quartodeciman Controversy

One reads St. John Henry Newman’s writings or the writings of Fr. Adrian Fortescue and one finds profound knowledge of and interest in the history of the Church, especially the Apostolic and Patristic periods. And this knowledge was not merely quaint antiquarian diversion, the way someone might know about small-gauge railroads in a given county at the turn of the century. These figures brought Church history to bear on questions of doctrine and practice that were live controversies in their days. Of course, their historical works are hugely entertaining and erudite as literary monuments, too.

By contrast—and let me say at the outset that I am as guilty of it as the next fellow—today we seem not to have the same interest in the history of the Church or the precedents of the Apostolic or Patristic eras. To be sure, their theology is often referred to. But one hardly sees discussions of Eusebius’s Ecclesiastical History with the same frequency one sees discussions of Augustine’s Confessions or City of God. This is too bad. In a 2007 general audience, Pope Benedict XVI praised Eusebius’s history as a source of “fundamental importance.” Benedict went on to make a startling statement, considering the lack of interest one sees in Eusebius, even among educated Christians:

Thus, Eusebius strongly challenges believers of all times on their approach to the events of history and of the Church in particular. He also challenges us: what is our attitude with regard to the Church’s experiences? Is it the attitude of those who are interested in it merely out of curiosity, or even in search of something sensational or shocking at all costs? Or is it an attitude full of love and open to the mystery of those who know – through faith – that they can trace in the history of the Church those signs of God’s love and the great works of salvation wrought by him?

Given the weight that a theologian and churchman like Benedict gave to the Ecclesiastical History, one feels compelled to crack open the dusty old Loeb (or Penguin) and cast around for scenes of interest. One such scene comes at the very end of Book 5 (5.23-5.25), where Eusebius recounts the Quartodeciman Controversy. One of the reasons why Benedict considered the Ecclesiastical History of such importance is because Eusebius preserved primary sources in his history for which he is the sole source. A particularly good example of this is found in his treatment of the Quartodeciman Controversy.

The dioceses of Asia held that Easter should be celebrated on the 14th of Nisan, following the definition of Passover and the preparation for Passover given in Leviticus 23. Naturally this may or may not be a Sunday, but regardless of whether or not it was a Sunday, that’s when the Lenten fast ended and Easter began. The opinion elsewhere was that one should not end the fast except on a Sunday—the day of the Lord’s Resurrection. The latter opinion, Eusebius tells us, was universal and was handed down by the Apostles themselves.

This matter became a live controversy toward the end of the Second Century. Synods were held in Rome, Palestine, Pontus, Gaul, and Osrhoene. Pope St. Victor presided over the Roman synod and St. Irenaeus presided over the synod in Gaul. (This will be relevant in a little while.) All of these councils reached the unanimous conclusion based upon the apostolic tradition: Easter is celebrated and the fast ends on a Sunday, not the 14th of Nisan.

The Quartodeciman bishops were, needless to say, unhappy that the judgment of Christendom had gone against them. Bishop Polycrates of Ephesus wrote to Victor, arguing in favor of their tradition. Eusebius quotes his letter at some length. In sum, he argues that the churches of Asia are decorated by saints asleep in the Lord, like St. John and St. Polycarp, all of whom maintained that Easter began on the 14th of Nisan, regardless of the day. Polycrates’s letter concluded in a manner perhaps not unfamiliar even today: he was not scared of threats and it is better to obey God rather than men.

Pope Victor was not altogether amused by Polycrates’s response, nor, insofar as we can tell, was he impressed by Polycrates’s stand on principle. He either excommunicated all the churches of Asia or threatened to do so on the ground of heterodoxy. Fortescue suggests that either he never actually published his decree excommunicating all the Christians in Asia or he withdrew the decree very quickly. We’ll come to that in a moment. What matters is that Victor’s initial reaction to Polycrates’s stand on tradition was to excommunicate not merely Polycrates but all the Christians in Asia.

Word got around. One doubts that this is something that happened all that often in those days. And other bishops offered Victor their views on the matter. By and large they did not think Victor was doing the right thing. Indeed, Eusebius says that they thought Victor ought not to do what he had in mind. In fact, the bishops asked Victor to turn his mind toward peace and unity and love, suggesting that they thought his plan to excommunicate the churches of Asia was contrary to peace and unity and love. Among the bishops who suggested that Victor had perhaps gone a little too far was St. Irenaeus.

Irenaeus was in a unique position in the controversy. Born in Smyrna to a Christian family, Irenaeus grew up around Polycarp, who had been cited by Polycrates as an authority in support of the Quartodecimans. And of course Polycarp himself was a disciple of St. John. By the time of the controversy, Irenaeus was bishop of Lyon in Gaul. However, one would be surprised if he did not have some insight into the Asian practice and the controversy. For his part, he reached the conclusion that Easter had to be celebrated on a Sunday notwithstanding the timing of Passover given in Leviticus.

Nevertheless, Irenaeus wrote Victor, urging him not to excommunicate all Asia. Irenaeus’s claim was that Victor ought not to excommunicate all these Christians merely for following their fathers’ tradition, which was, after all, itself unbroken. He observed that the dating was not the sole controversy, the fast was part of it. And there was much variation about the fast. But even if dating were the sole controversy, there was still insufficient ground to excommunicate them. Victor’s predecessors Anicetus, Pius, Hyginus, Telesphorus, and Xystus had all rejected the Quartodeciman position and kept the Roman Church free from error. But they had lived in peace with the Quartodecimans. Indeed, it was never suggested that this difference in calculation was a matter of heterodoxy rising to the level of severing communion.

Irenaeus made a particularly interesting point about the fast. It is worth dwelling on for a moment. Some kept the fast for a day, some for two days, others for forty hours. It appears—from Irenaeus and Tertullian—that the Lenten fast observed in those days was not universally the forty-day fast we know today. Within a couple of hundred years, the Lenten fast we know had emerged. At any rate, Irenaeus claimed that the variation in how the fast was kept demonstrated the unity of the Church, because all the people who kept the fast in various ways lived in peace with one another. In other words, diversity in practice among people who are at peace with one another is testimony to the essential unanimity of the faith.

Turning back to the date question, Irenaeus was particularly interested in Pope Anicetus’s conduct, which had a significant bearing on this question. Polycarp came to Rome during Anicetus’s reign. The matter of the dating of Easter came up. Anicetus and Polycarp simply could not agree on it. Anicetus could not get Polycarp to budge an inch: Polycarp stood on the tradition he received from St. John and other apostles. Polycarp could not get Anicetus to budge an inch, either: Anicetus had received a tradition from his fathers in the faith just like Polycarp did. However, this dispute did not result in a breach of communion between Anicetus and Polycarp, much less the sort of excommunication Victor had in mind. In fact, Anicetus made way for Polycarp to celebrate the Eucharist according to his tradition.

Victor seems to have changed his mind: either he never issued the excommunication he threatened or he withdrew it at once. And as is the case of so many heresies in the history of the Church, the Quartodeciman position died out. Two bishops, Narcissus of Jerusalem and Theophilus of Caesarea, prepared a brief for the apostolic tradition of celebrating Easter on a Sunday and observed that the Church of Alexandria had maintained the same practice, with an exchange of letters annually to ensure that everyone kept the same date. In the way of this, Eusebius tells us, the Quartodecimans were rebutted and unanimity achieved.

The Quartodeciman Controversy is an interesting moment in the life of the Church. Two practices existed side by side for a period of time. Suddenly, it becomes a doctrinal controversy. Eusebius does not quite explain what set off the explosion. Something had to, but it is not clear what it was. The various churches held councils and arrived at an opinion founded upon the teaching of the Apostles. Except for some holdouts. The holdouts informed Pope Victor that they stood on the tradition of the Apostles and saints and martyrs of Asia and were ultimately responsible to God, threats or no threats.

Pope Victor responded by declaring the practice of the Quartodecimans heterodox and threatening to excommunicate all the Christians of Asia. A drastic measure, to say the least. Such a peremptory action even today would be a sweeping exercise of papal jurisdiction. It’s rare enough for the pope to excommunicate anyone, much less everyone in a province, even on grounds much more certain than the grounds offered by the Quartodecimans. Victor’s brothers in the episcopate urged him to reconsider, to abandon the course of excommunication in favor of other means of preserving the unity and peace of the Church. Irenaeus in particular wrote him about the practice of the Church of Rome, which had been to tolerate the diversity in this discipline, even as it held, from apostolic origin, another discipline, in which the other churches of the world concurred. And in the end Victor reconsidered his approach.

There is perhaps a lesson here. Indeed, there must be. Benedict, in his 2007 address of Eusebius says, “Historical analysis is never an end in itself; it is not made solely with a view to knowing the past; rather, it focuses decisively on conversion and on an authentic witness of Christian life on the part of the faithful. It is a guide for us, too.” The Quartodeciman Controversy as presented by Eusebius is not merely an interesting historical highlight, made notable because the players in it are important for other reasons. His analysis of the situation serves therefore as a guide for us and ought to be approached as such.

One lesson is a lesson, as I said, that one finds written in the histories of many heresies that have afflicted the Church. Patient argument and the passage of time often resolve controversies more effectively than peremptory action. Narcissus and Theophilus analyzed the question relying on the apostolic traditions of their churches and came up with the case for the practice approved by the councils of the other churches, including Rome. Victor’s excommunication of Asia was ultimately not necessary. Once Narcissus and Theophilus had made their case, the Quartodecimans’ days were numbered. And today no one is a Quartodeciman.

Of course, the Quartodeciman Controversy has featured in various polemics between the protestants and the Church of Rome. In his splendid little book The Early Papacy, Fr. Adrian Fortescue makes some observations about this affair. Notably, no one suggests that Victor had not jurisdiction over the Quartodecimans. Second, Irenaeus does not say that Victor had not the power to excommunicate the Quartodecimans. Fortescue notes that Irenaeus (and the other bishops who wrote to Victor) merely holds that Victor should not excommunicate the Quartodecimans.

The question of the pope’s jurisdiction had been settled much earlier, when Pope St. Clement wrote to the Corinthians and commanded them to submit once again to their bishops. No one suggested then that Clement, who, as Fortescue drolly observes, was early enough that his name appears in the New Testament, had not the authority to command the Corinthians to do or not to do something. And no one, least of all Irenaeus, suggested that Victor had not the authority to declare the Quartodeciman opinion wrong. Irenaeus in fact thought it was wrong.

Nevertheless Irenaeus took Polycrates’s point and urged Victor to do likewise. The churches of Asia stood on a tradition no less venerable than the tradition of Rome. Victor’s predecessors, most notably Anicetus, had disagreed with the tradition, but had maintained peace with Polycarp, who held the position firmly and claimed to have received it from St. John himself. Ultimately the Quartodecimans were defeated not by a peremptory excommunication of the Christians of Asia but by the careful argument of Narcissus and Theophilus (and some others).

Fortescue points out that Irenaeus’s point is merely that Victor had better not excommunicate the Quartodecimans. It was not how this matter had been handled by his predecessors, who had, in fact, had occasion to consider it. However, Fortescue does not dwell on Irenaeus’s point about diversity in practice revealing unity in faith. Pope Victor was not wrong about the merits of the case nor was he acting ultra vires. Irenaeus simply pointed out that he was looking at it wrong. It was not a sign of heterodoxy for the churches of Asia to follow the practice of their fathers, a practice that stretched back through Polycarp to St. John. That Anicetus and Polycarp could be at peace was instead a testimony to the unity of the faith.

One finds in a few short chapters of one book of Eusebius’s Ecclesiastical History matter for much thought. Indeed, the passage throws some light on many modern controversies. How ought the pope to exercise his unquestionable jurisdiction? How ought one to relate to the pope when one thinks he’s making a mistake? What is the connection between doctrine and practice? Is there room in the Church for more than one practice? Obviously the answers these questions require more than one source, but, as Benedict says, Eusebius’s history is a source (and contains itself sources) of fundamental importance to begin to answer those questions.

A notable new book: Sohrab Ahmari’s “The Unbroken Thread”

I was delighted to receive a copy of Sohrab Ahmari’s new book, The Unbroken Thread. I begin with a confession: I knew people liked his conversion memoir, From Fire, By Water, but I did not read it. I am not a convert or a potential convert to the Faith and, to my great shame, have not cultivated much of an interest in proselytizing or evangelizing or whatever the correct term is these days. Luckily I avoided any social settings where I would be expected to know conversion literature generally or Ahmari’s book specifically, so I was spared the consequences for ignoring the book. One of the benefits, I suppose, of living in southern Indiana.

The Unbroken Thread, however, was immediately more compelling for me, not merely because I got a copy in the mail. It is in short Ahmari’s brief for tradition against the modern age. As a Catholic and occasional participant in debates over Catholic political and legal thought, this is a topic about which I am indeed interested. Everyone is interested in tradition these days, either for or against. One has only to check a trusted (or not) source of news to see that tradition is one of the burning topics of the age.

Ahmari tells us that The Unbroken Thread began its life as an idea to do a book of reporting about traditionalism among the young. This is a popular subject. Matthew Schmitz and Tara Isabella Burton, to take two examples, have drawn a lot of water from the well of upwardly mobile young people who like the traditional Latin Mass or anarchocommunists who own copies of the Little Office of the Blessed Virgin Mary. Ahmari’s agent kiboshed the idea, suggesting that Ahmari really wanted to write the case for traditionalism, which is precisely what Ahmari has done. Thank goodness for Ahmari’s agent. A book about Ivy Leaguers in New York City who own well-thumbed copies of the Liber Usualis or the Antiphonale Monasticum and Das Kapital would have been too much to bear.

And, really, Ahmari has written a much more interesting book than the one he initially wanted to write. He begins by reproaching his youthful exaltation in self-definition and remaking himself. He has found in the west today the same obsession with autonomy and reinvention. With this, Ahmari has gone straight to the heart of the problem with modernity. The French-Canadian theologian Charles de Koninck explained it in his Principle of the New Order. The project of the so-called enlightenment has been to reject the primacy of the speculative and exalt in man’s practical reason. Man turns away from what is best in himself—indeed what may be called superhuman (cf. Metaphysics A, ch. 2; Nicomachean Ethics 10.7)—and finds emancipation through the organs of practical reason: his hands and his tongue.

De Koninck notes that the exaltation of practical reason results in saying and writing things one cannot think. So long as one follows the rules of grammar, one can write or say anything, even if it is deeply irrational. He finds a connected phenomenon: the disconnection of history from prudence. Historical events can be judged “objectively,” in the light of “cold facts,” without the historian needing to make right judgments about human behavior. In this particularly pointed passage, De Koninck notes that this phenomenon allows “the adulterous man to cry out on the public place: this woman was taken in adultery!”

Of course, all this is nonsense. Our Lord tells us, as De Koninck reminds us, that we shall be accountable for all our idle words on the day of judgment (Matt. 12:36). We must, we are told, take the beam out of our eye before we can hunt specks in our brother’s eye (Luke 6:42). Ahmari understands, like De Koninck, that the project is nonsense. It has promised freedom and endless self-invention, but a quick look at cable news or social media suggests that no one feels particularly free. We have made man the measure of all things only to find that humanity is concept harder and harder to comprehend. Ahmari is right to be dissatisfied. Instead, Ahmari finds in the sacrifice of St. Maximilian Kolbe, the Franciscan friar who established a monastery in Nagasaki and died in Auschwitz, true freedom and true humanity.

It is against this backdrop—and Ahmari’s understandable anxiety for his young son, Maximilian—that Ahmari sets out to find in tradition the answer to the failed promise of the so-called enlightenment. In tradition, he argues, one finds true freedom and true happiness, as opposed to the shabby substitutes on offer today. To make the case, Ahmari structures his book around twelve questions, such as “Is God Reasonable?” and “How Must You Serve Your Parents?” and “What’s Good About Death?” Each chapter takes a look at the question through the lens of a thinker in the traditions of the world, setting them in their historical context. Ahmari deftly blends history, biography, and philosophy to propose answers to the questions he sets himself. I am reminded of Clive James’s excellent Cultural Amnesia. Both men make serious points about tradition and our culture without becoming pedantic or leaden. In and of itself, this is an accomplishment.

Ahmari is the opinion editor of the New York Post and a regular contributor to First Things among other publications. But The Unbroken Thread suggests that he has a real talent for biography and popular intellectual history. In an age of monumental biographies like Julian Jackson’s De Gaulle, Stephen Kotkin’s Stalin, or John Röhl’s Wilhelm II, there is much to be said for Ahmari’s sketches. Not everything needs to be a spiritual heir to Henri-Louis de la Grange’s Gustav Mahler or Robert Caro’s Lyndon Johnson. It is altogether possible to give a sense of a man and his thought—and his influence on the most important questions of the age—in less than five thousand pages and a forest of footnotes and endnotes and bibliographies. (Though Ahmari does cite his sources.)

It is worth noting as well that Ahmari does not limit himself to any one tradition. The rabbi Abraham Joshua Heschel, born in Czarist Poland and working in the United States, sits alongside Seneca, the Stoic philosopher who was Nero’s favorite—for a time. Certainly some of his choices recommend themselves by the sheer extent and force of their influence: St. Augustine, St. Thomas Aquinas, and Confucius. But he also draws upon figures who probably are not household names, like the theologian and civil rights leader Howard Thurman and the philosopher Hans Jonas. And he looks across the political spectrum. One does not necessarily expect to see Andrea Dworkin marshaled in a case for traditionalism, but here she is.

This is important, not least in the context of ongoing political debates in the United States and elsewhere. Tradition, Ahmari reminds us, is not the sole property of the west or of Christians or of the right. There are valuable insights in other traditions. One runs a risk, of course, of turning this into the liberal arts ideology. That is, by exploring all these traditions, you get a set of intellectual skills that allows you to solve modern, meaningful problems. That is to say, these traditions serve mostly to produce a neutral technology that has market value. I do not think Ahmari falls into that trap, since he emphasizes the ultimate ends toward which man is ordered. But I think The Unbroken Thread would have benefitted from a direct response to the liberal arts ideology.

The breadth of Ahmari’s book will appeal first and foremost to a general audience—by design, I imagine. However, aspects of the book cannot help but touch upon narrower debates. For example, Ahmari’s chapter “Does God Need Politics?” goes to the very heart of the ongoing debate in the Catholic (and more broadly Christian) right about the common good. Ahmari is himself in some large part responsible for sparking the debate, along with the Harvard Law School professor Adrian Vermeule. In a First Things essay and a series of debates with David French in 2019, Ahmari called for a reorientation of what is broadly called the culture war.

An aside first, though. While Ahmari has certainly done much to reinvigorate a debate about the goals and means of political Catholicism, The Unbroken Thread is not really a polemic in that debate, except secondarily. While Ahmari sets for himself questions about politics, his scope is not narrowly political. A reader who wants a barn-burning political tract—a rehearsal of the arguments against David French, for example—is probably going to be a little disappointed by Ahmari. To put it another way: it is not a Twitter thread against the libertarians expanded into book form. But a book that argues that one finds happiness and freedom through tradition is going to have political dimensions.

Ahmari called for a renewed focus on the common good, even if it requires state power to establish and promote, in opposition to the broadly libertarian approach taken by French. Vermeule put the case in more concrete legal terms in an early 2020 essay in The Atlantic, calling for a common-good constitutionalism to replace the worn-out judicial philosophy of originalism. This debate has consumed Catholic political thought for the last eighteen months or so. A very recent conference arranged by Ryan T. Anderson at the University of Dallas shows that there is still a lot of energy in this debate.

One of the key issues in the debate is the question of the common good. Liberals, for whatever reason, usually begin by mystifying the concept. What is the common good? What is peace? What is happiness? Who decides? So on and so forth. They hope, I think, that by making the common good an impossibly difficult concept, they can take some of the rhetorical force out of the concept and make it as vague as the concepts they rely on, such as freedom and democracy. In “Does God Need Politics?” Ahmari offers a solution to the problems the liberals raise.

The chapter is a reading of St. Augustine’s life and De civitate Dei. Ahmari turns to Pater Edmund Waldstein, O.Cist., and his brilliant reading of Augustine several times throughout the chapter. Though, having played some small part in these debates and being familiar with Waldstein’s work on Augustine, I was less struck by that aspect on my first reading. Instead, I was struck by how vivid Ahmari’s portrait of Augustine was. Certainly everyone knows the broad strokes of Augustine’s life, especially if, as most educated people have, they have read the Confessions. But Ahmari, perhaps finding some special kinship with Augustine (though that is mere speculation), draws a remarkably engaging picture of Augustine and the circumstances under which he wrote De civitate Dei.

At any rate, Ahmari presents Augustine’s vision of Christian politics in this chapter. In Augustine’s critique of Roman politics and society, Christians find for themselves an approach to politics in accordance with reason and the divine law. This is especially true for questions like the common good or peace. Book XIX of De civitate Dei has extended treatments of these questions, which have informed the tradition of Christian political thought for fifteen hundred years. As I have insisted on several occasions here (and elsewhere) these concepts have content that we are not altogether free to provide. When we talk about peace, for example, we are not totally free to redefine it for ourselves: we follow, for example, Augustine’s treatment of peace and those who have followed Augustine.

Ahmari does not provide a definitive, scholarly study on this question—or any of the questions he discusses—and I do not have the sense he is especially interested in doing so. Neither, of course, did Clive James in Cultural Amnesia. What he does do, especially if one is not familiar with the figures he discusses, is urge one to seek the figures out for oneself. Someone who might be familiar with the debate over the common good from Twitter or the various web and print articles at various outlets but who might not have read De civitate Dei may well be inspired to seek out a copy and read Augustine for himself. On this basis, The Unbroken Thread succeeds at its task.

A little more on law, happiness, and reason

It is no trick to review Thomas Aquinas’s famous definition of law from the Quaestio de Essentia Legis (ST I-II q.90). One can go through the various attributes of law before coming to Aquinas’s summation: “nihil est aliud quam quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata”—“it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II q.90 a.4 co.). However, if one hastens toward that definition, one may well miss important aspects of Aquinas’s argument in support of it. In particular, one overlook what it means for a law to be an ordinance of reason.

Aquinas begins by saying that law is a rule and measure of human actions (ST I-II q.90 a.1 co.). Here he follows earlier writers like Isidore of Seville (cf. Etym. 5.10, 5.19–20). But the rule and measure of human actions is reason, the first principle of human actions (ST I-II q.90 a.1 co.). Indeed, one may say that actions are properly human only insofar as they are rational (ST I-II q.1 a.1). Aquinas tells us that “In unoquoque autem genere id quod est principium, est mensura et regula illius generis”—“Now that which is the principle in any genus, is the rule and measure of that genus” (ST I-II q.90 a.1 co.).

Here one must attend carefully to definitions (cf. In I Post. An. L.5). Henri Grenier, author of the influential manual, Thomistic Philosophy, tells us that “[a] principle is that from which a thing in any way proceeds” (Vol. 1, no. 217). Aquinas, commenting on Aristotle’s Physics, tells us that, when Aristotle talks about “principles”: “per principia videtur intelligere causas moventes et agentes, in quibus maxime attenditur ordo processus cuiusdam”—“by principle he seems to mean moving causes and agents in which, more than in others, there is found an order of some progression” (In I Phys. L.1). Elsewhere he says “Tria videntur de ratione principiorum esse: primum quod non sint ex aliis; secundum quod non sint ex alterutris; tertium quod omnia alia sint ex eis”—“Three things seem to belong to the very nature of principles. First, they are not from other things. Secondly, they are not from each other. Thirdly, all other things are from them” (In I Phys. L.10).

Aquinas goes on to tell us that “Sicut autem ratio est principium humanorum actuum, ita etiam in ipsa ratione est aliquid quod est principium respectu omnium aliorum”—“Now as reason is a principle of human acts, so in reason itself there is something which is the principle in respect of all the rest: wherefore to this principle chiefly and mainly law must needs be referred” (ST I-II q.90 a.2 co.). Aquinas shows that the first principle is the last end, which for human life is happiness (ibid.). Indeed, Aquinas, following Augustine, argues that happiness is the last end proper to man as a rational creature (ST I-II q.1 a.8 s.c. & co.; e.g., Augustine, De Trinitate lib. XIII, c.5). Aquinas demonstrates at length that perfect happiness cannot consist in wealth, honor, glory, power, or any other bodily good (ST I-II q.2 a.1–5). Neither can happiness consist of delight, even delight in the supreme good (ST I-II q.2 a.6). Happiness must be therefore a good of the soul (but not in the soul) and indeed the universal good, the object of all men’s desires—God (ST I-II q.2 a.7–8).

We understand better, therefore, Aristotle when he says that just laws are those that produce and preserve happiness for the political community (NE 5.1, 1129b19; In V Ethic. L.2). One can draw all manner of other conclusions from this. For example, “cum beatitudo consistat in consecutione ultimi finis, ea quae requiruntur ad beatitudinem sunt consideranda ex ipso ordine hominis ad finem”—“Since happiness consists in gaining the last end, those things that are required for happiness must be gathered from the way in which man is ordered to an end” (ST I-II q.4 a.3 co.). And we know that in this life only imperfect happiness, which requires all sorts of external goods, is possible (ST I-II q.4 a.7 co.).

But we do not need to get too far into those weeds. The important thing is to recognize the connections between happiness, reason, and law. More than this, as before, one must recognize that these connections are not merely accidental. Law is an ordinance of reason, which means that it is necessarily ordered to happiness. And happiness itself is not a meaningless concept, dissolved for the most part into relativism—each person defines it for him- or herself. We know what the most perfect happiness is (cf. ST I-II q.3 a.8 co.). We know, too, that “Quod autem dicitur maxime tale in aliquo genere, est causa omnium quae sunt illius generis”—“Now the maximum in any genus is the cause of all in that genus” (ST I q.2 a.3 co.). And so on and so forth.

Law and the concept of happiness

There is a tendency, especially when discussing questions of law and politics in the classical, Catholic tradition, to overlook the meaning of the terms and concepts used by Aquinas and others in their expressions of that tradition. But Aquinas reminds us: “parvus error in principio magnus est in fine”—“a little error in the beginning is a big one in the end” (De ente et essentia, Prooemium). It is therefore necessary to keep these definitions in mind. An exploration of the consequences of a couple of central concepts—happiness and the common good—will suffice for a demonstration.

We know that in practical matters the first principle is the last end (ST IaIIae q.90 a.2 co.). The last end of human life is bliss or happiness (ST IaIIae q.2 a.7 co.). Aquinas tells us that law, therefore, must regard happiness and indeed, because man is a political animal, not just the happiness of an individual man but the happiness of the community (ST IaIIae q.90 a.2 co.). Aristotle tells us much the same thing when he treats justice in the Nicomachean Ethics: a just law produces and preserves happiness for the community (NE 5.1, 1129b12-27). And this happiness is the common good (In V Ethic. L.2, nos. 902–903),

So far, there is nothing too controversial in saying that laws must be framed to produce and preserve happiness for the community, which is the common good. A problem inevitably arises when the terms are used without any understanding of their meaning. It is all too common to hear the common good—or happiness—used mostly to mystify discussions or to smuggle in specific ideas, which have very little to do with the concepts as they are used. Insistence upon clear understandings of the concepts involved leads to clear understandings of the consequences of the claims made.

Let us follow its trail for a while and see where we wind up. Happiness, which is the same thing as the common good, has a concrete meaning. If the political community—if, for example, the state—is to secure and preserve happiness, then it is necessary to understand happiness. The first principle in practical matters is the last end (ST IaIIae q.90 a.2 co.). It may be suggested that happiness consists, for example, in a particular arrangement of political and economic conditions that allow for citizens to do or not do this or that thing. Indeed, even in Catholic discourse, one might hear temporal happiness described in such terms, with the suggestion that eternal happiness is added to that in some way.

Yet this is a serious error. For one thing, when one makes political prudence or science the highest wisdom, one necessarily supposes that man is the best thing in the universe, as Aristotle tells us (NE 6.7, 1141a20). Man is however not the most excellent thing in the world (In VI Ethic. L.6, no. 1186). Another consequence, if one holds that man is the most excellent thing in the universe—and, therefore, that political science is the most excellent—would be to make actually practical rule impossible. Charles de Koninck, in his Principle of the New Order, demonstrates that practical reason directs to an end in accordance with right reason. This requires one to know the end. To reject the primacy of the speculative is to knock the legs out from underneath this process: without speculative reason one cannot know the final end—which is the first principle. Practical rule dissolves into mere will and chance.

The speculative intellect is important not merely for making practical rule possible. In the classical account, it is the proper end of law and the essence common good. Aristotle tells us that the most excellent virtue—complete happiness—is contemplative (NE 10.7, 1177a12). That is to say, for Aristotle, to contemplate what is true is the best part of man. And the contemplative life is the perfectly happy life. Aquinas explains that the contemplation of truth consists both in discovering the truth and in reflecting on truth already discovered (In X Ethic. L.10, no. 2092). However, reflecting on truth already discovered is more perfect than the investigations leading to the discovery of truth. The perfectly happy life, therefore, comes from contemplation by reason perfected by the intellectual virtue of truth.

Aristotle and Aquinas alike extol the superiority of the contemplative life. Aquinas tells us that “vita contemplativa non est proprie humana, sed superhumana”—“the contemplative life is not properly human, but superhuman” (QD de virt. card. a.1 co.). However, “vita […] voluptuosa, quae inhaeret sensibilibus bonis, non est humana, sed bestialis”—the life of pleasure […] by which one adheres to sensible goods, is not human but bestial” (ibid.). Human life is the active life according to the moral virtues (ibid.). But it must be remembered that “vita activa, in qua perficiuntur morales, est ut ostium ad contemplativam”—“the active life, which is perfected by the moral virtues, is as a door to the contemplative life” (QD de virt. in communi a.13 ad 24). In other words, the contemplative is the best part of man, toward which the active life is ordered (cf. Metaphysics A, c.2, 982b5; In I De Anima c.1). Aquinas goes so far as to hold that to take pleasure in created things, as opposed to the permanent things that offer pleasure in the contemplative life, is to incur an impurity of affection (In X Ethic. L.10, no. 2091).

However, the centrality of the contemplative life goes well beyond being superhuman and the true end of the active life, perfected by the moral virtues. Aquinas teaches us that the maximum in any genus is the cause of all in that genus (ST Ia q.2 a.3 co.). He gives the example of heat: fire, the maximum heat, is the cause of all hot things. This principle returns in an unexpected place. In the so-called treatise on law, Aquinas tells us that in every genus, that which belongs to it chiefly is the principle of the others and the other things in that genus are subordinated to that thing (ST IaIIae q.90 a.2 co.). Once again, Aquinas uses the example of heat: fire is chief among hot things is the cause of heat in mixed bodies, which may be said to be hot insofar as they have a share in fire. It may therefore be said that the happiness of the contemplative life is the cause and principle of the happiness of the active life.

Therefore, the most just laws, which secure the greatest happiness for the political community, which have the greatest share of the common good, are laws producing and preserving the contemplative life. The law must lead the citizens of the political community to virtue (ST IaIIae q.95 a.1 co.). But the highest virtue is the virtue of the contemplative life. To the extent that the law fosters and promotes the virtues of the active life, it must be remembered that the active life is as a door to the contemplative life (QD de virt. in communi a.13 ad 24). The lawgiver must therefore have first and foremost in mind the virtues of the contemplative life: in practical matters the first principle is the last end. And the lawgiver must have in mind the fact the happiness of the contemplative life is the cause and principle of the happiness of the active life, even if the happiness of the active life involves some impurity of affection (In X Ethic. L.10, no. 2091).

One could go follow this trail a while longer and come to still more interesting and surprising sights, but the point is clear enough. Concepts like “happiness” and “the common good” have meanings in the classical tradition, and these meanings have consequences. When one attempts to define these terms in a wholly materialistic sense or, worse, to pretend that they have no fixed meanings, one reaches toward the formlessness of modernity. This is a terrible thing to do, reducing practical reason itself to chance, and it is still more terrible to do so unwittingly.

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