Professor Joel Alicea:
Welcome to Ordain and Establish, a podcast of the Center for the Constitution and the Catholic Intellectual Tradition at Catholic University. To learn more, visit our website at cit.catholic.edu.
Steve Payne:
I’m Steve Payne, I’m the dean of the Columbus School of Law at The Catholic University of America, and it’s my great privilege to welcome you to the lecture for a new endowed chair at our school called the St. Robert Bellarmine Professor of Law, which will be formally occupied officially starting this evening by Professor Joel Alicea, whom was the first faculty hire more than a decade when I first joined the school. I get to say more about Joel tonight.
Right now, my job is just to welcome you, thank you for coming, and to introduce his introducer, which is Professor Kevin Walsh, who is the Knights of Columbus Professor of Law in the Catholic Tradition, which was our first endowed chair at this school. And I’ll just say that Kevin is an amazing scholar. He is published in many of the top law journals, including Georgetown, Stanford, NYU, and Notre Dame. He’s an expert, especially on the federal judicial power. Among other things, he went to Dartmouth undergrad, to Notre Dame for a master’s, I think in theological studies, and did his JD at Harvard. It’s not too shabby of a school, not the number one school.
In any event, he is also quite a musician, and my favorite is he’s a great accordion player, although I think he has many other talents. And he is already, I think, a decent… Sorry, what’s that game where you throw sandbags into holes? Cornhole. He’s a great cornhole player, but he’s also, very importantly, already been voted Professor of the Year by our students. So, please give a warm welcome to Professor Kevin Walsh.
Professor Kevin Walsh:
Well, good afternoon. It is my privilege to welcome you for the inaugural lecture of the St. Robert Bellarmine Chair. I thought we might situate ourselves in time a little bit. This is a season of Lent the three pillars of Lent being prayer, fasting, and almsgiving. In a way, we’re celebrating almsgiving, a donation that enables this chair.
Now, March 18th, though, is an unusual day. I often wonder who is the saint that gets stuck between St. Patrick and St. Joseph, who’s a very special saint for Professor Alicea. Who is it between these two titans? It’s St. Cyril of Jerusalem, who is known for his catechetical instructions and for combating the Aryan heresy, which is not bad, actually, for the tasks that Professor Alicea will be undertaking. So, he was named a doctor of the church by Pope Leo XIII in 1882. And, of course, Pope Leo XIII is the founder of this university, chartering it in 1887.
Now, the Bellarmine Chair is not limited to constitutional theory, but it is fitting that Professor Alicea is the first holder of this chair. St. Bellarmine’s Feast Day is September 17th, which is the secular holiday in the United States known as Constitution Day, so a nice harmony here. The title of Professor Alicea’s lecture is constitutional theory at The Catholic University. Now, how about an introduction?
Professor Alicea is the director of the Center for the Constitution and the Catholic Intellectual Tradition, or CIT. He has overseen all of CIT’s activities from conception to execution and beyond, and I want to single out, in particular, the lecture series as well as the Aquinas Fellowship program as two of this law school’s most visible and important contributions to the American legal profession.
Having had the privilege of serving as Professor Alicea’s co-director of the CIT project that grew into the center, I can attest personally there is no single figure in the American legal academy whose administrative energy, intellect, and dedication have accomplished so much in so little time as Professor Alicea has for introducing American judges, lawyers, and law students to the riches of the Catholic Intellectual Tradition for American constitutional theory. Professor Alicea’s first major piece of published scholarship, co-authored with Donald Drakeman, is called The Limits of New Originalism. That appeared in 2013, the same year Professor Alicea graduated cum laude from Harvard Law School, which he attended immediately after graduating summa cum laude from Princeton.
After graduating from law school, Professor Alicea clerked on the United States Court of Appeals for the Ninth Circuit with Judge O’Scannlain, practiced the law at Cooper & Kirk here in DC for a couple years, and clerked on the Supreme Court of the United States in the chambers of Justice Samuel Alito. He returned to private practice for a few years, and then joined our law school faculty in August 2020.
His talents were quickly recognized here. He was the recipient of the Dean’s Research Award in 2021, 2022, and 2023, and honorable mention in 2024. So, here we are in 2025. These awards provided recognition of his scholarship published in the Yale Law Journal, University of Virginia Law Review, University of Pennsylvania Law Review, and Notre Dame Law Review, among others.
Now, a couple themes that run through Professor Alicea’s scholarship. One is the theme of the problem of disagreement in constitutional theory. His first full-length law review article, after joining the faculty, was liberalism and disagreement in American constitutional theory. He diagnosed certain disagreements between constitutional originalists and non-originalists as rooted in more foundational disagreements about individualism and rationalism.
His most recent full-length law review article is Constitutional Theory and the Problem of Disagreement. Here, he’s drawing on the Roman philosopher statesman Cicero as a constitutional theorist to explain how constitutional design, rather than constitutional theory, can channel disagreement into a productive, stable constitutional order. This attention to our outlook as citizens within an order also informs his paper, The Role of Emotion in Constitutional Theory, which retrieves St. Thomas Aquinas’s account of emotion and Edmund Burke’s account of the role of emotion in constitutional culture to identify attachment to popular sovereignty at the foundation of American constitutional legitimacy.
His contention that the success of constitutional design depends on how we act within the constitutional order as citizens rather than as theorists relates to a second theme. This is a commitment to the natural law written on our hearts and accessible through reason. In his article, The Moral Authority of Original Meaning, Professor Alicea presents a natural law theory of popular sovereignty as a foundation for constitutional originalism. And in his Yale Law Journal article, Practice-Based Constitutional Theories, continues his insistence on identifying and exploring the normative grounding for social practices about law.
Confidence in the truth that there is truth about the good and human flourishing underwrites an outlook toward constitutional theory that does not shrink from disagreement or treat it as the final word. This inaugural lecture for the St. Robert Bellarmine professor of law at the Catholic University of America is a beginning of sorts, but it is fundamentally the continuation of an upward trajectory for Professor Alicea and for the Columbus School of Law.
In addressing the topic of constitutional theory at Catholic University, we can expect from Professor Alicea the qualities of character another university saw in him now 15 years ago. So here, in our new Bellarmine Chair at Catholic University, same qualities recognized when Professor Alicea graduated from Princeton University and was awarded the Harold Willis Dodds Prize, and I think you’ll see this continuity in Professor Alicea’s character. He was recognized and continues to be recognized for his, and I quote, “clear thinking, moral courage, a patient and judicious regard for the opinions of others, and a thoroughgoing devotion to the welfare of the university and to the life of the mind.” Please join me in welcoming Professor Joel Alicea.
Professor Joel Alicea:
Well, thank you, Professor Walsh, for that really generous introduction. Very meaningful to me to have that introduction from my former co-director and still close advisor and friend, Kevin Walsh. And thank you to my colleagues and students for being here. I’m grateful to the anonymous donor who endowed this chair and who made my lecture today possible, and to Leonard Leo, the donor’s representative and a trustee of this university for supervising the donor’s gift. I’ll have more to say in gratitude to Dean Payne, my colleagues and students, Leonard, my family, and others this evening at the installation ceremony.
It’s a great honor to be installed in a chair named after St. Robert Bellarmine, a cardinal and doctor of the Church. He lived in the tumultuous years between 1542 and 1621, and he’s truly one of the towering intellectual figures of the 16th and 17th centuries, a man who himself held chairs at some of the most famous universities of his time. While Bellarmine is best known as a theologian who persuasively defended church teachings against Protestant criticisms, it is fitting that he lends his name to a chair here at our law school. Bellarmine was a great constitutional theorist of his day, writing with deep insight about the nature of political authority, the constituting of civil governments, and the limitations on legitimate political power.
In opposition to the divine right theory of monarchy, Bellarmine argued that while all political authority comes from God, it is vested by God in the people of a society as an original matter, and the people, in turn, decide whether to transmit a portion of their authority to the government constituted in their name. This understanding of popular sovereignty, which had its roots in the writings of St. Thomas Aquinas, was foundational to my defense of the compatibility of originalism and natural law in my article, The Moral Authority of Original Meaning. And I relied on Bellarmine’s scholarship in that article, so I pray for his intercession as I take up this chair endowed in his name.
In keeping with the name of this chair, I want to reflect today on what makes the study of constitutional theory distinctive in the context of a Catholic university. Here, I’m using the term constitutional theory as it most commonly is understood in American legal scholarship, as referring to normative constitutional theories that propose a methodology for resolving constitutional disputes, such as Professor David Strauss from Chicago’s common-law constitutionalism, precedent-based fashion of resolving cases. And they offer a justification, constitutional theories, normative theories, for adopting the methodology that they propose.
Constitutional theory can also refer to non-normative theories, in which we try to accurately describe as much as possible how our constitutional system, in fact, operates but are not concerned with how one ought to resolve constitutional disputes. I set aside that latter understanding of constitutional theory for purposes of my remarks today because I think it has a less obvious relationship to the unique characteristics of a Catholic university.
Now, by a Catholic university, I mean a university with the essential features that Pope John Paul II identified in the apostolic constitution Ex Corde Ecclesiae. There, St. John Paul referred to the distinctive Catholic character of a Catholic university. Such a university “consecrates itself without reserve to the cause of truth.” It pursues the truth under conditions of academic freedom and using the methods proper to each academic discipline while “adhering to the teaching authority of the church in matters of faith and morals.” So its distinctive character springs from “a common dedication to the truth, a common vision of the dignity of the human person, and ultimately the person and message of Christ.” We, here at The Catholic University of America, are privileged to be at a university that fully embraces the distinctive characteristics described in Ex Corde.
Over my five years as a constitutional theorist here at CUA, I have thought about the relationship between my discipline and the unique setting of a Catholic university. I will argue today that the study of constitutional theory is ideally suited to benefit from the intellectual climate of a Catholic university. Indeed, while I will not engage in a comparative analysis of the various areas of legal scholarship, my tentative view is that few other areas of legal scholarship lend themselves as readily as constitutional theory to the kind of intellectual exploration a Catholic university encourages.
To make that argument, I’ll need to address three questions. First, in what ways does constitutional theory benefit from the intellectual disposition of a Catholic university? Second, what might be the potential drawbacks or risks involved in studying constitutional theory at a Catholic university? And finally, how can one gain the benefits of being a constitutional theorist at a Catholic university while avoiding any potential risks that attend that setting?
I should make clear up front that I do not contend that the benefits and risks I will identify are the only benefits and risks. I believe, however, they are the most salient ones, and that’s why I will focus on them here.
Let’s begin then by examining the ways in which a constitutional theorist benefits from being at a Catholic university. Understanding the relationship between a Catholic university and constitutional theory requires understanding why constitutional theory necessitates making moral arguments. So, I’ll start there.
As I said, normative constitutional theories propose a way of resolving constitutional disputes and offer a justification for that methodology. Because they claim that judges or other constitutional actors should adopt one method of resolving disputes over others, they are exercises, that is these theories, in practical reason. They require reasoning about what one ought to do. Knowing what one ought to do requires making both descriptive and normative claims. Descriptively, we need to know basic facts about the object of our practical reasoning.
If, for example, human beings could drink unlimited quantities of alcohol without experiencing inebriation, the ethics surrounding drinking alcohol and then driving a car would be different. It is because of the fact that alcohol can impair our judgment and abilities in a way that endangers ourselves and others that we have a moral obligation not to drink and drive.
Similarly, in constitutional theory, we need to know certain facts about the Constitution if our practical reasoning is to reflect reality. We need to know, for example, that the Constitution, through Article V, separates higher lawmaking functions of constitutional amendments from the ordinary lawmaking functions of federal legislation described in Article I. If the American Constitution were like the British Constitution, in which there is no meaningful distinction between higher and ordinary lawmaking because Parliament can change the Constitution by statute, that might change how we ought to resolve constitutional disputes under our Constitution by, for instance, undermining the justification for judicial review of the constitutionality of legislation by an independent judiciary.
But even if we know the basic facts about the object of our practical reasoning, that is not enough, at least in the realm of constitutional theory, to tell us how we ought to act. Depending on what one thinks of the is-ought distinction as a general matter, facts about human nature may contain within themselves a normative prescription. That’s a debated question. But facts about a constitution are contingent, the result of human creation and choice. They contain no normative force in and of themselves. Indeed, it might be the case that citizens can, in some extreme circumstances, are required to disregard features of a constitution since those features might be deeply unjust. Think, for example, of fundamentally corrupt constitutions like that of Nazi Germany.
Facts about a constitution do not in themselves give us a reason to choose one constitutional theory over another. Choosing a constitutional theory requires the application of universal moral principles to the facts of a specific regime. Applying moral principles to the facts of a specific regime, in turn, depends on answering all sorts of antecedent questions of political theory and morality. Because we ought to resolve constitutional disputes in light of the end to which a constitution is directed, we need to know what the purpose of a constitution properly understood is. And because enacting a constitution is an exercise of political authority, understanding the purpose of a constitution requires knowing what the purpose of political authority is. That, in turn, requires us to know why human beings need political authority, which requires us to know how it is that human beings flourish as the distinctive kind of beings that they are.
While we started with the seemingly narrow question about which constitutional theory we ought to adopt, we will eventually find ourselves having to answer deep questions of political philosophy. If we want to answer these questions in a coherent that is internally consistent manner, we will need to identify the correct ethical framework to govern human actions. Possible frameworks include natural law theories, consequentialist theories, Kantian theories, and others. So choosing a constitutional theory ultimately depends on identifying the correct theory of ethics and its attendant political theory, and that leads us into consideration of the distinctive benefits of doing constitutional theory at a Catholic university.
If we’re going to identify the correct theory of ethics and the right political theory that follows from it, we want to be in an intellectual environment that not only accepts but promotes what I’ll call intellectual breadth. By intellectual breadth, I mean breadth across time, place, and discipline. The kinds of moral questions raised by constitutional theory, such as the nature of political authority and the ends of government, are timeless and universal. They recur in all ages, among all peoples, and in all places. Even if you knew nothing about what any of those peoples at other times and in other places had said about these questions, you would have no good reason ex ante to suppose that your answers were better than theirs or that they had nothing to teach us. And, of course, if you did know something about what Plato, Aristotle, Cicero, Augustine, Aquinas, and Bellarmine said about those topics that I mentioned, you would know that they have much to teach us about these enduring questions.
These questions also implicate all disciplines. As noted earlier in my discussion of the relationship between descriptive and normative claims, sound practical reasoning requires acquisition of the knowledge about the world obtained through the natural and social sciences. It requires the illumination of the human condition that comes to us through history, art, and literature, and it requires the knowledge and reasoning of political theory, philosophy, and theology.
To take an example from my own scholarship, an article called The Role of Emotion in Constitutional Theory, let us suppose that the stability of a just constitution is a good thing. If so, then constitutional theory has to care about what is conducive and what is antithetical to a stable constitution. In thinking about that set of issues, psychology can be quite helpful. Modern psychology has generally vindicated Aquinas’s model of emotion within the human person, which holds that a stable personal disposition depends on the alignment of reason, emotion, and will towards a particular end. As Edmund Burke argued, that same alignment of reason, emotion, and will is necessary to sustain a constitution over time. That means we have to cultivate the emotional attachments to a just constitution, and that can only be done through the customs and rituals, the wardrobe of the moral imagination, that educate and form our emotions.
Here, in this example, we have psychology, sociology, art, and literature informing the development of a political theory, one that can undergird a constitutional theory. And a Catholic university is the ideal intellectual climate for this kind of interdisciplinary work that spans time, place, and people.
As Pope John Paul II observed, a Catholic university takes its distinctive character from the unique evangelical mission of the church. When we consider that the church’s mission is universal, to proclaim the good news of Jesus Christ to all the world at all times, it is no surprise that a Catholic university would likewise share this universalist disposition. Just as the church, in all ages, draws all people to herself, a Catholic university draws what is true from all sources, across disciplines, cultures, and eras. If the church is founded on the Lord Jesus who is truth itself, then a Catholic university cannot regard the various academic disciplines as hermetically sealed off from each other. They must come together in a single whole.
St. John Henry Newman made this precise point in the idea of a university, where he argued that the unity of knowledge is both essential for understanding the truth and is rooted in theology as the organizing discipline for all other disciplines. In short, a Catholic university is the ideal setting for an ongoing conversation across time, place, and discipline about the great questions that serve as the foundation for constitutional theory.
Now, one might argue that the same intellectual breadth is possible at secular universities, and in principle, I agree. At their best, secular universities exhibit a similar commitment to truth-seeking and an eagerness to engage in an ongoing conversation across millennia and across disciplines. That isn’t surprising since modern secular universities trace their lineage to medieval Catholic universities and retain some of the characteristics of their Catholic origins.
But I would suggest that intellectual breadth is lamentably no longer a feature of our most prominent secular universities. Not only have secular universities incentivize hyper-specialization that leads to a siloing of knowledge, but they have also been captured by ideologies that are hostile to all but the most recent thinkers, thinkers who have largely emerged from similar places and share similar philosophical commitments. Our great secular universities have, in a word, become increasingly parochial, exhibiting an intellectual disposition that is antithetical to the scholarly exploration of the kinds of questions that are essential to constitutional theory.
And for the reasons I stated earlier, this is no accident. The character of a truly Catholic university necessarily transcends time, place, and discipline, which gives it some degree of immunity, kind of antibodies against the intellectual contagions, the passing fads of a given era. Secular universities have less immunity and are, therefore, more likely to fall victim to intellectual pathologies. That is not to deny that Catholic universities can fall into other kinds of intellectual traps. And so, now, let me turn to considering the potential risks of doing constitutional theory at a Catholic university.
I want to focus on one risk in particular, intellectual complacency. This risk is the flip side of the potential benefit I just identified. A constitutional theorist at a Catholic university, exploring the great ethical and political questions I described earlier and immersed in the awe-inspiring intellectual tradition that is his inheritance, can be lulled into an unearned confidence in the premises that serve as the foundation for his arguments. He can fall into the habit of assuming certain premises to be true that are in fact deeply contested in the academy more broadly, to the point where the arguments undergirding those premises are forgotten.
For constitutional theorists, this risk is perhaps most acute when working within the natural law tradition, especially for those who engage with the work of Thomas Aquinas. Aquinas’s reputation among Catholic scholars is arguably unsurpassed by any other thinker in the Catholic Intellectual Tradition. His writings are comprehensive and tightly interwoven, creating a system of thought that would take a lifetime to master. These features of Aquinas’s work can lead to two intellectual tendencies among followers of Aquinas’s thought, tendencies that, at first, look quite different from one another, but actually share the same basic flaw.
The first is a tendency to use discreet parts of Aquinas’s work to support whatever argument the scholar is making without evaluating whether what Aquinas says is true. Confident of Aquinas’s unrivaled brilliance, the theorist gives up on thinking through the soundness of Aquinas’s work, instead citing those parts that are most relevant to the theorist’s current project without elaboration.
The second tendency is to regard Aquinas’s work as a seamless garment, a system of thought whose component parts cannot be examined apart from one another. Given the gargantuan task of mastering this system of thought, the theorist ends up working solely within the intellectual universe constructed by Aquinas, even while purporting to make normative arguments addressed to non-Thomistic audiences, thereby assuming the correctness of Aquinas’s views throughout. What unites both tendencies is the treatment of Aquinas’s work as a proof text. Under either scenario, the theorist deploys Aquinas’s arguments without any demonstration of the premises, undergirding his arguments, as if the mere fact that Aquinas said it, “It should suffice to silence any doubt.”
The risk of falling into these traps is enhanced because of the deep confusion and moral pluralism of our age. Confronted with a seemingly endless variety of clashing ethical positions, we can come to treat Aquinas thought as a comforting redoubt, a solid fortress against the roving bands of intellectual fads. Troublingly, this leads to an insularity, not unlike what I earlier attributed to the faculties at many secular universities, though the cause is quite different. It converts natural law into a kind of partisan ideology.
Yves Simon anticipated this danger in his book, the Tradition of Natural Law. Writing in 1965, Simon observed that a renewed mid-20th-century interest in natural law had occurred “concomitantly with the success of existentialism, which represents the most thorough criticism of natural law ever voiced by philosophers. Against such powers of destruction, we feel the need for an ideology of natural law.” Simon continued, “Whereas an ideological current marked by relativistic and evolutionistic beliefs may cause a situation strongly unfavorable to the theory of natural law, ideological currents expressive of an eagerness to believe that some things are right and some things are wrong by nature may cause another kind of difficulty and call for a supplement of wisdom on our part.”
Ironically, of course, approaching Aquinas’s work as a proof text is deeply anti-Thomistic. Aquinas’s work is breathtaking, not just because of the conclusions he reaches, but because of the rigor with which he reaches them. The Summa is after all structured as a disputatio, in which Aquinas addresses the best counter arguments to his own positions. To truly be Thomistic is to question Thomas’s conclusions, to subject him to the same scrutiny to which he subjected the views of those with whom he disagreed.
In Justice Scalia’s final public lecture in February 2016, just before his death, he went to the Dominican House of Studies across the street from here and argued forcefully against what he understood to be Aquinas’s view of the judicial role. I had the privilege of being present at that lecture. I believed at the time that Scalia misunderstood the implications of Aquinas’s thought and that there was a way to reconcile originalism with the natural law, a reconciliation that I eventually tried to effectuate in The Moral Authority of Original Meaning article that I mentioned earlier. But regardless of what one thinks of the merits of Scalia’s argument, by subjecting Aquinas’s views to scrutiny, it was far more Thomistic in its intellectual orientation than the partisan mindset of those who agree with Aquinas’s arguments but fall into the kinds of intellectual traps I described earlier.
So there are risks that come along with being a constitutional theorist at a Catholic university, and those risks stem from the same thing that serves as the benefit of being at a Catholic university, immersion in the world’s richest, most fruitful intellectual tradition. Again, one might argue that the same risks are present at a secular university. If what I said earlier is correct, and scholars at many secular universities share a common worldview and tend to rely on the arguments of a small set of modern thinkers, couldn’t they fall into precisely the same trap of using the writings of such thinkers as proof texts, of failing to question their own premises, and of developing a kind of partisan attitude towards intellectual discourse? Yes, they could, and many of them have, unfortunately.
While legal academia at secular universities is probably slightly healthier than the rest of the academy, even legal academia is in generally poor shape, to say nothing of the rest of the academy. But while secular and Catholic universities might both pose the risk of intellectual complacency, they do so for different reasons. With secular universities, it is their insularity that can lead to complacency. With Catholic universities, it is the intellectual confidence born out of their intellectual breadth that can lead to complacency.
That brings us to our final question. How does a constitutional theorist avoid the risk of intellectual complacency while deriving the benefit of intellectual breadth at a Catholic university? The answer is not obvious because the two kinds of intellectual complacency I just discussed are driven, in part, by legitimate considerations. Scholars have limited time, resources, and expertise.
A constitutional theorist has to address some of the most enduring ethical and political questions, but ultimately, his expertise is in constitutional theory as it relates to the American Constitution. He cannot be expected to become an expert in the writings of Plato, Aristotle, Cicero, Augustine, Aquinas, Kant, Marx, Nietzsche, and every other significant political philosopher, arrive at a conclusion about the truth of each relevant argument they make, and only then apply the resulting ethical conclusions to the field of constitutional theory. That may very well be the ideal way to proceed and one to which we should aspire, but it’s simply not practicable.
One could think of the two kinds of intellectual complacency I described as responses to this impracticability. Both use Thomistic writings as proof texts because it allows them to take advantage of a kind of division of labor. They’re essentially outsourcing their ethical thinking to Aquinas, so that they can focus on other tasks. Now, given Aquinas’s brilliance and the endurance of his thought, that might seem like a reasonable strategy, yet I’ve just condemned it as intellectually complacent and anti-Thomistic.
If becoming an expert on all the great thinkers and running their arguments to ground is impracticable, and if the division of labor strategy is unacceptable, where does that leave us? There’s probably no single correct answer to that question since I regard it as largely a matter of prudential judgment. But in my time as a constitutional theorist at a Catholic university, my approach has been to do more than the division of labor strategy requires, but less than the expert in all things strategy requires.
The constitutional theorist cannot hope to run every premise of every one of his arguments to ground, but he can subject his premises to at least some scrutiny within the bounds of what is reasonable, given his time and resource constraints. And he can forthrightly acknowledge to himself and to his audience the limited nature of what he has proven in light of those constraints.
I certainly do not claim to have always succeeded in striking the right balance in my own scholarship, but I have tried to follow this via media. In my Moral Authority of Original Meaning article, for example, I expressly stipulate that I’m assuming a natural law framework, not trying to prove that such a framework is correct. But rather than leaving things at that, I subject my premises to some level of scrutiny in two ways.
First, I give what I regard as plausible arguments in favor of each of those premises. I don’t just assert them. And second, I show that those premises have been shared by many thinkers in the natural law tradition. The popular sovereignty theory on which I base my argument for originalism, for example, is shared in various forms by Aquinas, Suarez, Cajetan, Bellarmine, Simon, and others across the centuries from different schools of thought within the natural law tradition. That at least suggests that the argument is unlikely to rely on mistaken premises that can arise from the idiosyncrasies of one thinker or school. Or to take another example, in my article, The Role of Emotion in Constitutional Theory, I sketch Aquinas’s philosophical model of the relationship between reason, will, and emotion, but reinforce the plausibility of his arguments in two ways.
First, I show that his model of emotion accords with the writings of many modern philosophers of emotion, including those outside the natural law tradition. So, again, this isn’t a view that is idiosyncratic to Aquinas. Second, I point out that psychology, neuroscience, and other modern fields have largely validated Aquinas’s philosophical model of emotion, at least with respect to the components of his model that were important for my arguments in that paper.
In neither of the examples I just gave from my own scholarship did I achieve the ideal standard, one of rigorously demonstrating the truth of every Thomistic premise on which I relied, but nor did I simply assert those premises as true by using Aquinas’s writings as a proof text. I showed the prima facie plausibility of my premises by giving reasons that those who do not normally agree with Aquinas might be able to accept.
Again, I do not claim to have succeeded in that ambition, but that was my intention. It’s an approach that is necessary if scholarship rooted in the Catholic Intellectual Tradition is to be in conversation with work of other scholars who start from very different premises. Generally speaking, and with some exceptions, I regard it as a mistake for scholars at a Catholic university to speak only or predominantly to those within their intellectual circles who already share their premises. That kind of scholarship can quickly fall into intellectual complacency.
At this point, one might reasonably ask, “Well, why should anyone care about the benefits and risks of doing constitutional theory at a Catholic university? Isn’t this all a little introspective and maybe even self-indulgent?” Perhaps under normal circumstances, it would be, but we are living through a time when we need sound scholarship rooted in the Catholic Intellectual Tradition, perhaps more than ever, including in the realm of constitutional theory.
Our culture is deeply confused about many things, including whether our constitution is morally legitimate, how it should be interpreted, and what understanding of the human person it presupposes. There is, therefore, a duty on the part of scholars at a Catholic university, including constitutional theorists, to draw upon the riches of the Catholic Intellectual Tradition in proposing answers to these difficult questions, to illuminate a better path than the twisted road we currently travel, and that duty can only be carried out by attending to the benefits and risks of doing constitutional theory at a Catholic university.
Absent that self-awareness, the resulting scholarship will fail to meet the moment. But now is the time for Catholic universities to take the lead in presenting a more compelling understanding of the human person and the governance that leads to human flourishing. Now, when our great secular universities are consumed with doubts about their intellectual inheritance, is the time for Catholic universities to propose a rededication to the wisdom of our forebears, a wisdom that we are privileged to safeguard and pass on. Through the intercession of St. Robert Bellarmine, may this university, The Catholic University of America, lead the way. Thank you.
Thank you very much. So we have time for Q and A, a few minutes for Q and A. Professor DeGirolami?
Professor DeGirolami:
Thank you very much.
Professor Joel Alicea:
I think we have the microphone coming. Yes, just for the recording.
Professor DeGirolami:
Thank you very, very much, Professor Alicea. That was a wonderful, very rich set of reflections, broad ranging and provocative in many respects. The question that I have concerns your discussion of breadth and narrowness in the Catholic as compared with the secular university. And I wonder, actually picking up on some of your own work in the Problem of Disagreement, whether the problem of disagreement is actually at the root of the choice on breadth versus… It precedes the problem of breadth versus narrowness.
Sometimes when you were speaking, I’ve heard Rawlsians, for example, say, “Look, I am speaking in the language that will be accessible even to those that don’t agree with me.” But of course, what’s motivating their initial choice for a Rawlsian and sort of a liberal approach is itself a normative selection, which then opens up into a set of arguments. And so, sort of like a range of arguments that they can make. Some people are going to be outside of that range, but the best Rawlsians will be broad, right? They will opt for a sort of broad.
Are you suggesting a similar kind of thing for the Catholic scholar, sort of a Catholic Rawls, kind of Rawls at its best, right? So appealing to a broader range of thinkers, approaches, and so on, within the limits set by pervasive disagreement.
Professor Joel Alicea:
So when I said that it’s important to make arguments that can be accessible to those with whom you disagree, my point was not to, by proposing that, disqualify or exclude arguments that spark disagreement or are in the teeth of disagreement. Controversial moral propositions, right? I have defended the view that constitutional theory cannot proceed without making contested moral claims.
My point was to say that, when making those types of claims, it is important to attempt to the extent one can to supplement your arguments with other lines of argument that could reinforce them, and that might very well be accessible to someone who rejects other premises on which you’re relying. So, for example, if I’m proposing that we use Aquinas’s model of the emotions, for someone in the natural law tradition, that might be a very reasonable way to proceed, or at least as an initial matter. But for most of our colleagues in the academy, they would be deeply suspicious, I think, about starting with Aquinas’s model of emotion in thinking about constitutional theory.
So I think it’s helpful and important to point out that this isn’t just some Thomistic view, that it also is a view that is held by those outside of the natural law tradition, those who do not rely on natural law premises in any explicit way, and that you try to then bring your audience along to the more controversial parts of what you’re proposing. That’s what I’m suggesting, as opposed to what I think can develop in some intellectual circles within the natural law tradition, which is to just simply ignore the fact that some people are starting from completely different premises, right?
I don’t think that’s very useful in intellectual discourse and in scholarship. I think it’s better to at least attempt to bridge that gap without giving up the contested moral premises that you’re starting from and without being bashful about making arguments that you know will be rejected by your interlocutor. I think that’s a key distinction with Rawlsian public reason, which has a tendency to simply exclude lines of argumentation, exclude lines of discourse, and that is not what I’m proposing. Yeah. Professor Webb?
Professor Webb:
Thank you, Joel.
Professor Joel Alicea:
We’ll just wait for the microphone.
Professor Webb:
Thanks, Joel. Great talk, very much enjoyed it. So you make a strong and persuasive case that Catholic social thought can shed some light on the study of American constitutional theory and constitutional law, but I wonder whether you think the inverse is also true, that the study of American constitutional theory and the American constitutional experience, more broadly, can shed light on Catholic social thought.
And the example that comes to mind for me is George Weigel’s observation that he thinks looking at Catholic social thought and its evolution from the early 19th century to the later part of the 20th century, where you go from Americanism as sort of a heresy, in the early 19th-century social encyclicals by the Popes, to especially Pope John Paul II’s embrace of more an understanding of pluralism, limited government, natural rights theory, some of the things that the Catholic Church seemed to embrace in the later part of the 20th century, that it was a little bit more uncomfortable with in the 19th century. And Weigel suggests that the reason for that was the American experience with those norms and constitutional concepts that proved, actually, to be kind of productive of peace, rather than the concerns that the Popes had in the early 19th century. So, any thoughts on the inverse of your thesis?
Professor Joel Alicea:
That’s a great question. I do think that there can be feedback going in the other direction, not in a manner that changes any truth claims about faith and morals, obviously, and from the Catholic Intellectual Tradition perspective. But many conclusions relating to political theory or constitutional theory in the Catholic Intellectual Tradition are the result of timeless truths applied to contingent circumstances that involve the exercise of prudential judgment, right?
And so, there are some theorists in the Catholic Intellectual Tradition who would be very strongly against exproposition, based on what they know from their knowledge of history or experience, to be the result if this constitutional arrangement or that constitutional arrangement is permitted to take place. But then, we might have more experience later on that convinces us that the conclusion reached by that earlier thesis was simply incorrect, given the lack of knowledge of different constitutional arrangements, different facts on the ground. In other words, because constitutional theory requires the application of moral principles to facts, and those facts and our assessment of how those facts interact with the moral principles can change, yeah, you could have prudential judgments that also change over time, even while the constant principles do not change. Yeah. Yes, Hugo?
Professor Hugo:
Thank you for the lecture professor, and thank you especially for your comments regarding complacency. Are there any areas within modern Thomistic thought, especially where it intersects with constitutional theory, you see as particularly ripe for scrutiny and interrogation, and capable of generating fruitful insights for legal thinkers?
Professor Joel Alicea:
Areas of constitutional theory? Josh, why don’t you give him the microphone back, one second. I just want to make sure I clarify the question. So you’re asking if there are areas of constitutional theory that should be scrutinized more than they have been from the perspective of the Catholic Intellectual Tradition?
Professor Hugo:
That’s correct.
Professor Joel Alicea:
So I think there are a lot of areas of constitutional theory, yes, that could benefit from further scrutiny. So, for example, Professor Walsh has been studying the application of the Catholic Intellectual Tradition to questions of federal court doctrine, which you might think doesn’t seem like an obvious place for the Catholic Intellectual Tradition to apply. But actually, in his chair lecture that he delivered a couple of years ago here, he explored how some basic analytical and philosophical moves within the Catholic Intellectual Tradition can help illuminate concepts like justiciability. I think that is just a wonderfully creative and insightful way to think about the relationship between the Catholic Intellectual Tradition and constitutional theory and constitutional law more broadly.
It doesn’t have to necessarily be areas that are obviously moral, like the ones that I’m highlighting here. It can sometimes be the case that areas that don’t seem to lend themselves as readily to analysis through the lens of the Catholic Intellectual Tradition can still do so. Another example, Professor Squitieri’s article on administrative law. The administrative virtues tries to do the same thing, taking a Catholic intellectual approach, so not a theistic approach, but a Catholic intellectual approach in analyzing administrative law doctrine, which doesn’t, again, seem obvious as an area for fruitful analysis, but it is. And I think that because so few scholars explore constitutional law and constitutional theory from this perspective, the Catholic Intellectual Tradition’s perspective, there is a lot of ground to be tilled that this law school could do in the years to come, which I think is very exciting. Professor Walsh?
Professor Kevin Walsh:
Well, thank you for that lecture, and particularly your mention of the talk that Justice Scalia gave at the Dominican House of Studies. I never realized that connection between you attending that and saying, “Well, I’m going to write about this,” and it actually ties into something that was on the cutting room floor from the introduction, which is that St. Robert Bellarmine was born in the Montepulciano region of Italy, and this was Justice Scalia’s favorite type of red wine.
So I’d like to revisit that talk and say, what were the biggest things that Justice Scalia got wrong about Aquinas? And maybe where did he have something, some insight that perhaps Aquinas did not articulate as he would have if he had the full breadth of the American constitutional experience?
Professor Joel Alicea:
I think that one of the things that Justice Scalia got wrong in that lecture was his assumption that when Aquinas states certain ways of thinking through legal disputes, that he’s claiming that the contingent features of a particular constitutional regime are somehow irrelevant in reasoning through ways of approaching constitutional adjudication. Aquinas says no such thing, right? He’s not saying in the Summa or anywhere else that all constitutional regimes at all times in all places require judges to be constituted in a particular way and to act in the same way, right? That’s not his view.
And I think that Justice Scalia’s criticisms of Aquinas seem to presuppose something like that view, something like Aquinas is simply making sweeping claims about how American judges should resolve a case of standing, or something like that. And I don’t think that’s what Aquinas says. I think Aquinas is very attentive to and careful about the distinction between those things that are directly dictated by the natural law, and those things that are matters of determination, where you do have to take into account the contingent circumstances of a particular regime. And that can lead to a different analysis, moral analysis, as to what kind of method of resolving constitutional disputes is appropriate to the judiciary in our regime versus another regime. And once that is taken on board, within the limits of the natural law, there are some outer boundaries to what can be permissible or not, you can start to develop an argument for originalism within the natural law tradition in the specific context of the American Constitution, as I try to do in the Moral Authority of Original Meaning piece.
I think another mistake that Justice Scalia made in that lecture was he seemed to think that there was a problem with him as a Supreme Court justice deciding cases in ways that lead to a result that is itself contrary to the natural law, when that really depends on questions of the scope of judicial power in general in the regime, but also what the legal question was before the court. In fact, if I recall correctly, and this is just from my memory of being at that lecture in 2016, I’m pretty sure that Chief Judge Pryor of the 11th Circuit, who was in attendance, pointed out to Justice Scalia in the Q and A that he had overlooked this question of what court is being faced with the legal question or what is the legal question.
So I think in the case of like the death penalty, which I believe was the issue they were going back and forth about, Chief Judge Pryor pointed out that, “Well, if you’re a district court judge and it is in your discretion to impose a death penalty or not, and you decide to impose the death penalty, that is quite different if you think the death penalty is contrary to the natural law. That is quite different than a Supreme Court justice deciding whether your habeas petition is barred because of some procedural problem,” right? And the denial of the habeas petition leads to the execution going forward, right? Those are completely different moral analyses, and it’s a mistake to just conflate them into just looking only at the conclusion and saying whether the conclusion is consistent with the natural law or not.
I do think one thing he got right, and that I rely on in my Moral Authority of Original Meaning piece, is his contention that with, at least in the American context, but perhaps more generally, but certainly at least within the American context, if a judge’s authority is circumscribed such that the judge is not authorized under that regime to set aside the positive law when it’s in clear conflict with the natural law, that could leave the judge with only two options, either to recuse from that kind of case or to resign if it’s an ongoing problem and you have a fundamentally corrupt constitutional system where you’re regularly going to be put in that kind of position as a judge.
I think that he’s right to say that those are kind of the main options. If you have a situation where the judicial power of that regime doesn’t let you correct the conflict between the natural law and the positive law, as I believe our regime generally does not, and as Justice Scalia also believed rightly, that it generally does not. But that does still leave some very difficult questions about specific issues that test your moral instincts as to what the judge is supposed to do in that circumstance. Yeah. I think… Oh, one last question. Yes, please.
Speaker 7:
Thank you. As someone who is new to the thought of Aquinas, I was curious if you could speak a little bit more about Aquinas’s view of popular sovereignty. Is it the same thing as Stephen Douglas? And what’s the relationship between popular sovereignty and justice? Is it just might makes right? Is it just a vote of the majority makes right?
Professor Joel Alicea:
Yeah, it’s a great question. I think that it’s really important to drill down on what one means by popular sovereignty in this kind of argument. By popular sovereignty, I simply mean the proposition that ultimate civil authority in a given polity is vested in the people of that society. That is a quite different proposition than the proposition that the only acceptable or the best form of regime is a Democratic or a Republican one. That’s completely separate from simply saying that ultimate political authority is vested in the people’s society. They could, in turn, choose to constitute a government in their name that is not democratic or not Republican. And that would be completely compatible with what I’m saying here.
There are also complications about how you think about popular sovereignty in general, but especially in the American context, because of the existence of the states. And this is an issue that comes up in McCulloch versus Maryland, right, in the Marshall Court.
And I think it’s also important to point out that my understanding of political authority, which is what I’m saying, is vested in the people of the society, ultimately, as an initial matter. And ultimately, that political authority, as the natural law tradition would understand it, I think correctly, is a means to achieving the common good of the society, which means that insofar as you are trying to do something that is contrary to the common good of a society, that is not an exercise of legitimate political authority. It’s, in fact, antithetical to the very thing that political authority exists to achieve. So it’s not the case that whatever the people of the society want to do is a legitimate exercise of political authority and is therefore licit under the natural law tradition. They are bounded by the natural law, just like any other wielder of legitimate political authority. And with that, I think we’ll leave it there. Thank you very much. Thank you.
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