Links Between Originalism and Natural Law Explored

Joel Alicea of the American Enterprise Institute writes about links between originalism and the natural law tradition.

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. …

… The view that the people of a society hold ultimate political authority within their society is, as I demonstrate in my NDLR article, the view of natural-law theorists from Aquinas to Cajetan to Suarez to Bellarmine to Simon to Rommen, among others. What is remarkable about this consensus (which, aside from offering a different interpretation of Aquinas, ALC does not dispute) is that these theorists disagree among themselves about all manner of important things and yet are unanimous in holding that ultimate political authority resides in the people.

There are various arguments that these theorists have advanced for their shared conclusion. The one I present in my article was articulated by Aquinas in Question 90, art. 3 of the Prima Secundae. Aquinas argues that, because lawmaking authority exists to secure the common good, it must be vested in whoever has responsibility for securing the common good. Because we have a responsibility to pursue our own good, and because securing the common good is necessary to or part of (depending on one’s conception of the common good) our own good, each of us in society has responsibility for securing the common good. Thus, each person in society is vested with political authority.