Over the last several decades, we have seen what many view as the unraveling of American culture and the breakdown of the American constitutional order. As proof, people point to the rise of radical individualism, the loss of community (including the unraveling of familial bonds), rampant materialism and consumerism, the advent of the sovereign self, the loss of any consensus on serious moral questions, and a sense that the only bonds we have are those we choose.
A number of individuals have characterized these problems as diseases that threaten the order bequeathed to us by our founders. The solution they propose is a return to the principles of the founding. Call this Group One.
Others, however, suggest that what some see as a corruption of the system is actually the essential tendency of the political order established by the framers. That is, these diseases are the natural result of the political order constructed by the framers (an order founded on the protection of individual rights and established by choice rather than given by nature). Call this Group Two.
If we shift the focus from the American constitutional order or the American founding to modernity more generally, then I think Group Two is right. Much of what we lament in contemporary culture and politics is the product of modern philosophy. The argument that contemporary maladies are features of the American order rather than corruptions or distortions of it rests on the idea that the American order is a modern political order. According to the standard argument, the American order is the product of the modern philosophy of Hobbes and Locke. Since Hobbesian and Lockean philosophy laid the theoretical foundation for contemporary cultural decline, and since the American order is Hobbesian and Lockean, it follows necessarily that these contemporary failings are the product of the American order rather than the corruptions of a contemporary liberalism at odds with it. So the argument goes.
This way of thinking about the American order, modernity, and their relation descends from Strauss and his followers. I am among those who disagree with Strauss’s account of the history of thought. At the very least, I think the historical and theoretical work of scholars such as Francis Oakley (here, here, here, and here), Edward Feser (here and here), Nicholas Wolterstorff (here and Chapter 5 here), Brian Tierney (here, here, and here), Charles Reid (here, here, and here), John Witte (here and here), Knud Haakonssen, and A.P. Martinich (here and Chapter 2 here) renders its accuracy exceedingly implausible. Indeed, I would argue that the political thought of the American order (and its antecedents in the seventeenth century during settlement and colonial development) point away from the central currents of modern moral and political thought.
Contrary to this view of the American founders, I want to argue that Madison’s constitutional theory is basically Thomistic. One might call this system of thought “Madisonian Thomism.” Of course, Madison wasn’t deliberately applying St. Thomas’s Treatise on Law to constitutional design, nor was the Convention’s final product purely Madisonian. Madison lost on a number of items he considered essential to his constitutional vision (such as a national veto on state legislation, representation of the states in the Senate based on population, and selection of national senators by some agency other than the states). Yet, given his influence on the structure of our government, it is significant that Madisonian political thought is not modernist.
Classical vs. Modern Notions of State Power
By coining the term “Madisonian Thomism,” I don’t mean to imply that Madison and Aquinas would agree about everything. Rather, my point is that Madisonian constitutionalism is intelligible only on the basis of a Thomistic metaphysics of morals. In other words, a classical account of natural law is the necessary ground for an intelligible Madisonian constitutionalism. And, by contrast, modern moral and political philosophy are in irreconcilable theoretical conflict with the Madisonian vision.
Let me elaborate that last point a bit. Distinctively modern political theory is committed to the notion of the sovereign state where sovereign power is understood as an absolute power over law and society. But consider the jurisdictional separation of church and state one finds in the Virginia Statute for Religious Freedom, in Madison’s Memorial and Remonstrance against Religious Assessments, and implicit in the provisions for toleration and free exercise found in state declarations of rights and incorporated in their first constitutions; or consider federalism, constitutionalism, and the separation of powers. All these are at odds with the vision of sovereign power held by modern political theorists such as Jean Bodin and Thomas Hobbes. The American order resonates more with the federal political theory of Johannes Althusius than with these statist theories. In his critique of Bodin, Althusius’s syncretism drew upon Aristotle, classical natural law, and the federal theology of one wing of Reformation thought. Consequently, federal political theory pointed in an entirely different (indeed opposite) direction from Bodin and Hobbes.
With the phrase “Madisonian Thomism,” what I have in view is the analytic relation of St. Thomas’s account of law and natural law (and the relation of human law to natural law) to Madison’s constitutional program. To see the connection, we must keep in mind two major pillars of the Madisonian edifice: popular sovereignty and the priority of the common good.
First, Madison was committed to popular sovereignty. The authority to exercise political rule is located somewhere in every system. Madison, with the framers more generally, located that authority in the society (the people, in popular sovereignty, refers to a corporate whole—an incorporated entity rather than an aggregation reducible to the sum of its parts). For Madison, popular sovereignty or popular rule meant the rule of the people as determined by the majority. Throughout his writing and speeches, Madison made his majoritarianism clear. At the Constitutional Convention, Madison rejected the idea of equal representation of the states in the Senate because their equal representation would allow a minority to control the majority. And in Federalist 10, Madison sought to find a cure for the disease of abusive majority factions while preserving a republican form, which meant majority rule. Majoritarianism is clearly an essential ingredient of Madisonian constitutionalism.
Now, there is a point of contrast with Aquinas here. Madison—and the founders more generally—held that only popular sovereignty (as determined by the majority) and a republican form were fully legitimate. Aquinas, however, would not affirm that a republican form or majority rule was a necessary condition for legitimate rule. But the position I’m putting forward—Madisonian Thomism—does not depend on Aquinas making any such affirmation. Aquinas would accept that majority rule could be legitimate. And that is sufficient for my argument. To return to my point: Madison is a committed majoritarian.
The Priority of the Common Good
But Madison was no Holmesian. He did not favor unconstrained or absolute popular sovereignty. Rather, he was committed to constrained majoritarianism. The purpose of the extended sphere of the republic and long terms for Senators is to constrain majority rule. Madison favored constrained majority rule for the sake of promoting rule by deliberative, reasonable, and just majorities oriented toward the common good over majority faction—that is, over a majority pursuing its own interest or desire at the expense of the public’s welfare. As Madison saw it, long-term, broadly distributed majorities are more likely to be just and for the common good than are majorities animated by narrow interests or the passion of the moment. Madison, therefore, sought to establish a constitutional order that distinguishes just from unjust majorities—majorities animated by the public good from those animated by partial interest—in order to favor the former and suppress the latter.
Return to St. Thomas. According to him, law is an ordinance of reason, for the common good, made by the person entrusted with the care of the community, and promulgated or made known. Law is not the command of the sovereign, whatever that command happens to be. It must be ordered to the common good. And it must be an ordinance of reason, for reason is the rule and measure of human acts. Law, therefore, has something in it transcendent of human willing and that is normative for human willing. Natural law, moreover, is a rule and measure for human law. Consequently, for human law to be law in the proper sense—for it to bind—it must conform to and not be contrary to natural law. In other words, natural law imposes moral limits or constraints on those who make law for human communities. Human rulers are morally constrained by what is right and good for human persons.
Madisonian constitutionalism is an effort to make those moral constraints institutional constraints—to institutionalize the rule of law rather than men, to direct human sovereignty in the direction of the rule of reason (as Madison intimates in Federalist 63). Moreover, Madisonian constitutionalism attempts to constrain political authority, given that the locus of political authority is the people or society. Our Constitution constrains popular sovereignty in a way that is intelligible only on the assumption not only of moral and metaphysical realism but on a teleological account of human good as well.
Such constrained popular sovereignty and federalism are deeply, logically at odds with modernist political theory—and especially with the notion of a unified sovereign state in which sovereign power is exercised over both law and society. Bodin and Hobbes, the architects of the modern teaching of sovereign power, understood such power as power exercised over society. By way of contrast, the framers’ Constitution is predicated on the sovereignty of society over not only individual citizens but government as well. It is no accident that one finds the notion of popular/societal sovereignty in early modern thinkers influenced significantly by St. Thomas (including Richard Hooker, Althusius, Bellarmine, and Francisco Suarez).
The conflict of the American political order with modern moral philosophy should be apparent as well. Madisonian constitutionalism—by virtue of its structure—necessarily rejects the subjectivist (or emotivist or expressivist) account of good and evil. That account holds that good and evil are relative to desire—what we want is good just because we want it and that to which we are averse is evil just on account of our aversion. Similarly, Madisonian constitutionalism rejects voluntaristic accounts of moral obligation in which obligation is constituted solely by a prescribing will—whether of God, the commonwealth, the conventions of the community, or the sovereign self.
The Good in Madisonian Constitutionalism Is Objective and Teleological
Madison seeks to constrain popular sovereignty, favoring some popular majorities over others—favoring, that is, some exercises of popular will over others (long term over immediate popular will, for instance). But—for the same reason that you can’t distinguish some prime numbers (say 7 and 31) from the set of all prime numbers on the basis of primeness—it is impossible to distinguish some exercises of popular will from others on the basis of will alone. It is impossible to favor the preferences of certain majorities over others on the basis of majority preference or desire alone. It is impossible, therefore, to make such distinctions on the basis of subjectivism or voluntarism. The distinction can only be made in view of a thoroughly objectivist and realist account of the good and the right. And since the good in question is one toward which human willing ought to aim, it is also teleological (see my more elaborate argument in Chapter 4 here).
To be sure, there is a sense in which Madison seeks to use modern constitutional means or mechanisms (the separation of powers, representation, enlarging the territory over which republican government is exercised) to obtain classical ends (such as the rule of law rather than men, constitutional restraints on the exercise of political power, a lawmaking process aimed at justice and the common good). My point is simply that Madison’s normative frame is not modern. His constitutional theory is in not wedded to modern notions of autonomy or the sovereign self. He is no Hobbesian. He is not Lockean, if Locke is construed as a watered-down version of Hobbes, made more palatable for popular consumption.
At the same time, it is true that we have been caught up in the currents of modernity, including modern statism. The diseases of our contemporary political order, some of which I listed at the outset, are certainly features or the product of modernity and, in particular, of modern moral and political theory. Bacon, Hobbes, Locke, and others share some responsibility for our current maladies. Nor would I claim the American framing was without real flaws and errors (including the retention of slavery). J. Budziszewski may well be right to claim that the moral and metaphysical views of most framers were ultimately too thin.
I’m not arguing that the solution to our present maladies is reaffirmation of everything the framers held or sought to do. Our founders ought not be treated as divine oracles, and the constitutional system they created should not be viewed as the most perfect that ever there was or will be. Yet they did create a relatively good political order—one that is worth preserving. There is real good in Madisonian constitutionalism—good that is compatible with the deep and profound moral, political, and metaphysical thought of Thomas Aquinas.