At NRO, Joel Alicea: Natural Law and Popular Sovereignty: A Response to My Anonymous Critic. From the introduction:
There is an ongoing debate among scholars and commentators about the compatibility of originalism and the natural-law tradition. Most prominently, Harvard law professor Adrian Vermeule and emeritus Amherst professor Hadley Arkes have argued that originalism is incompatible with the natural-law tradition. I have taken the opposite view, arguing in an article in the Notre Dame Law Review (NDLR) that originalism is consistent with the natural-law tradition in the American context. My argument is based on the natural-law position that ultimate political authority rests with the people of a society, and I contend that only originalism respects the people’s legitimate authority in the American constitutional system. This disagreement has led to exchanges between me, Vermeule, and Arkes here at NR and at the online home base for natural-law critics of originalism, Ius & Iustitium. Last week, Ius & Iustitium published another critique of my views, this time by an anonymous author who is a “recent federal judicial law clerk.” Because this critique — unlike previous critiques I have answered — focuses on the popular-sovereignty component of my argument for originalism, it seems worthwhile to respond, and I will continue with my past practice of making my response here at NR. For convenience, I will refer to the author as “anonymous law clerk” or “ALC” and will use the generic masculine pronoun.
ALC’s critique rests on a number of misunderstandings of my position and of the natural-law tradition. His front-line argument is that, because I have argued that the people of a society hold ultimate political authority within their society, I have overlooked the fact that authority exists to “solve[] coordination problems” that the people as a whole cannot resolve, and it follows that authority must be vested in some person or subgroup within the society rather than in the people of the society in general.
And from later on (footnotes omitted):
ALC concludes by asserting that my position — specifically, my defense of originalism based on my account of authority — is inconsistent with Aquinas’s view that positive law must accord with natural law. In fact, I endorse Aquinas’s view and devote an entire section of my NDLR article to explaining why originalism in the American constitutional context is consistent with Aquinas’s understanding of law, though the reader would not know that from reading ALC’s post. One striking feature of ALC’s post in this regard — which is a common theme for natural-law critics of originalism — is a failure to engage in any meaningful way with the particular features of the American constitutional order (e.g., the historical American understanding of the judicial power, the significance of Article V, etc.). Instead, these critics tend to skip from general theoretical premises to a specific theory of constitutional adjudication without considering how the legitimate determinations of our regime — such as the allocation of powers within our system — bear on the morality of that theory. Given the natural-law principle that the distribution of power within a regime is largely a matter of legitimate determination that carries moral significance, the failure to take such determinations into account is a serious error that leads to all kinds of mistakes among originalism’s natural-law critics, as I have recounted at NR before. Indeed, it is notable that at no point does ALC provide an answer to the question with which he begins his post — who is the legitimate lawmaker in the United States who promulgated the Constitution — or to the question that follows from it: Is the Constitution “law” as understood under the Thomistic definition of law? Natural-law critics of originalism habitually avoid answering those questions, and their silence is telling.
Posted at 6:29 AM