Postliberals like Adrian Vermeule are known for their tales about modernity and its decadence. Like Juan Donoso Cortes and Carl Schmitt, they pine for a model of governance based in personal sovereignty, whether in the hands of one person or an expansive bureaucracy. Over and again, they appeal to the common good to justify a constitutional model that downplays pillars of modern constitutional democracy (and liberal democracy), like the separation of powers, checks and balances, and constitutionally protected civil rights. Vermeule even sees autocratic rule as consistent with a rule of law. By a rule of law, however, he means something more like a rule by law of the sovereign executive and his or her bureaucracy, not unlike the rule of Roman emperors.

But simply appealing to the common good will not justify postliberal politics. The same Catholic tradition from which they draw has plenty of resources for defending modern constitutional democracy like that realized in the American Founding. Modern constitutional democracy, in fact, developed within a cultural-moral Zeitgeist amenable to the political morality of Catholic scholastics of the sixteenth and seventeenth centuries, and its doctrines of natural law, natural rights, and social contract theory, which emphasized government as legitimated by the consent of the governed. Yes, these older Catholic scholastics were also at home in mixed monarchies and even assumed some of the autocratic assumptions of Roman law, but there are many reasons to think that their fundamental political morality would be even more at home in modern constitutionalism had they encountered it.

First, however, it is important to understand the novel context of constitutional democracy. From the standpoint of European history, modern territorial states as we know them are a relatively recent phenomenon.1 They developed in the late Middle Ages and came to ever greater prominence after the Reformation (Johnson and Koyama 2019). As their capacity for promulgating and enforcing laws over large geographic territories continued to grow, even the limited checks on power available in the Middle Ages became less and less effective at curtailing them. As V. Bradley Lewis (2016, 128) puts it, “the modern state is distinguished by a vastly greater control over the many sinews of social life, assisted by technological means undreamt of by the most hubristic premodern tyrant.”

With technological progress and a corresponding increase in capacity for social organization, the power of groups and individuals over one another has only grown since the advent of the modern state, and this is the case whether that power is in the hands of the state or not.2 Therefore, older solutions to the problem of power, while not particularly effective in the past, are simply dead options today. We saw in the twentieth century, in fact, what modern governments are capable of without institutional arrangements that wisely channel and limit power.

At the same time, the power that governments now possess is a consequence of factors that also make it an easier time to be alive, namely, growth in technology and in capacity for social organization, which have taken much of humanity out of extreme poverty, illiteracy, and rampant child mortality. Noel D. Johnson and Mark Koyama even argue compellingly that the greater capacity of the modern territorial state to tax and enforce its own rules over large territories has led to a shift from identity-based rules (ones based on one’s religion, race, etc.) to general rules for larger, more diverse, populations, thus facilitating fairer protection of law than was previously possible (see Johnson and Koyama 2019, 3). Therefore, there are arguably significant advantages to modern territorial states, even if they create new problems that must be addressed with modern democratic constitutionalism.

From the standpoint of specific constitutional arrangements, modern democratic constitutionalism was entirely novel in relation to those older traditions, insofar as even the wisest Catholic scholastics never overcame old assumptions about the relationship between the political community’s leadership and coercive law. They were stuck in the world of Roman law, which carried with it an implicit absolutist constitution, even if in practice this tendency was curtailed in the Middle Ages by the realities of Christian Europe.3 In fact, in Roman law there was almost universal deference to the sovereign (princeps), which was reflected in the formula quod principi placuit legis habet vigorem (“what pleases the prince has the force of law”).4 The sovereign was also considered released from the coercive aspect of law. Although Catholic scholastics argued that the leader of the community was under a moral duty to obey the law, and although they accepted an extralegal right of resistance, they nonetheless presumed that the leader of the community stood above the ordinary coercive power of law. The British political tradition, by contrast, featured more emphasis on an ideal of institutional limits on political leaders, and this made it a more fruitful context for the development of modern constitutionalism.

That is not to say there was no place for a separation of power in the writings of the most influential scholastic thinker, Thomas Aquinas, or those who followed him. Aquinas, like Thucydides, Plato, Aristotle, Polybius, and Cicero favored some kind of mixed regime that combined elements of monarchy, aristocracy, and democracy. He even believed that he identified in the pre-monarchy period of Israel an example of such a regime.5 Other scholastics would follow Aquinas on this. But Aquinas also accepted the Roman legal principle that the prince was released from the coercive reach of the law.6 By contrast, although the British tradition had, by modern standards, quite limited safeguards against concentrated power, it featured more emphasis than continental Europe on these ideals. One can find a hint of this rhetoric already in the statement of thirteenth-century British jurist Henry of Bracton (1940, f. 171b; emphasis added):

The king has a superior, namely God. Also the law by which he was made king. Also his court, namely the earls and barons because earls (comes) are so-called as being companions of the king, and who has a companion has a master. And therefore if the king shall be without a bridle, that is without law, they ought to put a bridle on him, unless they themselves are without a bridle with the king.

Like the Magna Carta, it would be easy to exaggerate what these hints of limited government meant in practice, but over time, they would serve as seeds for reflection in a political culture that increasingly emphasizes institutional checks on executive authority. Later, in the 1611 Case of Proclamations, Chief Justice Edward Coke would rule that “the King has no prerogative but that which the law of the land allows him” (Geisel 2020). The Anglo-American political tradition thus set up a more promising context for institutional checks on power and for the development of a political culture in which the law is truly sovereign. As Anglican cleric Richard Hooker tersely put it at the turn of the seventeenth century: “Happier that people whose law is their King in the greatest things, than that whose King is himself the law” (Hooker 1922(1648), 146; Fortescue 1997). Modern constitutionalism would give unprecedented teeth to this ideal.

On the heels of the 1689 Glorious Revolution in England, along with the political thought of Whig thinkers of that era (e.g., John Locke and Algernon Sidney), the eighteenth century was a watershed for constitutional theorizing, with figures like Montesquieu, Blackstone, the Scottish enlightenment theorists (e.g., David Hume, Adam Smith, and Adam Ferguson), along with American Constitutional Framers all playing significant roles. Moreover, there was the natural experiment of post-revolutionary state constitutions leading up to the American constitutional convention of 1787. The experience of post-revolutionary America, in fact, convinced James Madison and other Framers that more measures were necessary to mitigate the problem of faction and local tyranny within republican regimes (Wood 2021). All of these developments presupposed democratic representation, which Madison calls in Federalist No. 51 “the primary control on the government,” even if it requires “auxiliary precautions” (Madison 2001, 269).

KEYWORDS: Constitutional Democracy, Rule of Law, Postliberalism, Natural Rights, The Common Good