Editor's Note: The series this article is part of was originally submitted as one academic paper. Due to its length we divided it up into several parts which will be posted in installments. Additionally we have not included the original footnotes . We will include the whole original piece with footnotes as an attached document to the last installment of the series for readers who wish to read it in its original form. Read Part 1 here.
The Supremacy of God
Aquinas’ definition of law requires that, along with being an ordinance of reason for the common good, it must be promulgated by “him who has care of the community”. This leads directly into how the government issues and implements positive laws, that is, into constitutionalism. A nation’s constitution is the rule of law behind its rule of law.
Going back to Aristotle, the word “constitution” has had at least two meanings. One is its neutral connotation as a description of a state’s civic arrangements (which we will call “descriptive constitutionalism”). The other is its positive connotation as a requirement for a just society (“prescriptive constitutionalism”). The expression “the supremacy of God” takes on a different connotation depending on what kind of constitutionalism we are talking about.
In one sense, a constitution is simply the governmental arrangement, delineating which officials are in charge of what sorts of legislation and how they go about passing it. Aristotle defined this sort of constitution (politeia) as being “the ordering of a state in respect of its various magistracies, and especially the magistracy that is supreme over all matters.” As Aristotle goes on to note, even oligarchical and tyrannical systems are constitutions, by this metric.
Importantly, a constitution is a system, not a text. It precedes any sort of document called a “Constitution”. We must pause over this key point to understand the thought of the important counter-revolutionary thinker, Count Joseph de Maistre (1753-1821). Maistre was in many ways the father of 19th century ultramontanism, the “throne-and-altar” Catholic traditionalist conservatism which held that the Church should govern society. His constitutional ideas are important, not only for their own merits, but because of how influential they were on the French Canadians milieu at the time of Confederation. There is even an allusion to his thought in the national anthem: “Amour sacré du trône et de l'autel…” We must understand him to understand an important founding idea of our country.
Maistre wrote his 1809 Essay on the Generative Principle of Political Constitutions in response to the revolutionary political movements in France and the United States which set out to effectively build new constitutions from scratch. Maistre thought it was a gross mistake to think that humans create constitutions. He rejected the social contract thought of Rousseau and Locke, arguing that human agreement can never create a binding law but could only make a compact that lasts only as long as that agreement exists. “Law is not properly law,” Maistre argues, “unless it emanates from a superior will.”
Instead, constitutions are generated by circumstances beyond human control. They arise out of the history of communities which no person could predict or plan. As an example, Maistre offers the English constitution with its triple balance of powers. No one sat down and planned it out. It organically developed out of the confluence of different elements of English history. It was recognized after the fact, not designed in advance.
There seems to be something to Maistre’s argument. Behind the Magna Carta was precedent, in both English legal-political history and in popular folklore, for seeing the monarch as subject to law. We also cannot understand the Magna Carta apart from the widespread backlash against the murder of St. Thomas Becket, a hero of the Church’s liberties which are recognized in the Magna Carta’s first article. All of this suggests that the Magna Carta was defending rights that were already recognized, not creating new ones. Conversely, most written constitutions have a lifespan of about 17 years. This is true even of constitutions which are considered models of institutional design and citizen participation, such as Thailand’s 1997 constitution, which was already being replaced in 2006. Maistre seems to be correct in saying that a mixture of factors--including the religious beliefs of the citizenry--are the matrix of a country’s constitution.
In explaining constitutions, Maistre draws an analogy to the Catholic Church. The Church is a living organism that already has its entire “constitution” in the form of its Gospel (Maistre stressed that Jesus did not write any legislation for His disciples), but as it goes through history, it develops that teaching for different circumstances and produces dogmatic documents to deal with specific heresies, though these new developments are always implicit in what was already given. Maistre was following St. Vincent of Lerins, who used the image of the Church being a seed that grows and develops, and anticipating Catholic thinkers like John Henry Newman, who also depicted the development of doctrine as a “living tree”. The language from Edwards v Canada (AG)  describing the Canadian constitution (which is carefully distinguished from the document called British North America Act 1867) has this pedigree behind it.
Maistre concludes that, since it is history rather than human ingenuity which creates constitutions, the true author of constitutions is God. This ties into his advocacy of temporal power for the Church, the ultramontanism which was so influential to the French Catholic population who co-founded Canada. But one need not be a theist to understand and sympathize with his basic point that constitutional development issues more from circumstances than from legislative will. This is true of all constitutions, good or bad. “The supremacy of God” could be a Maistrean shorthand for this.
- Prescriptive Constitutionalism
The word “constitution” is also used to specifically describe an arrangement whereby power is separated, usually among Montesqieu’s familiar three branches. John Adams saw this separation as necessary for the rule of law to exist. The usual reason given for why power should be separated is that doing so “prevents tyranny”. But this answer, in itself, is little better than a tautology. We need to look at it a little more closely in the light of what we have established about the meaning of the rule of law.
We have seen that the rule of law means that government’s will is constrained and controlled by reason, meaning that a statute that contradicts moral reason is not a true law. But what does this look like in practice? Even apologists for absolutism like Jean Bodin (The Six Books of the Republic, 1576) and Sir Robert Filmer (Patriarcha, 1680) affirmed that, while the absolute ruler is not bound to human laws, he is still subject to God’s laws. James I and Charles I, whose views of their own authority agreed with Filmer’s, believed they were still accountable to God.
But if there is no legal mechanism for enforcing the ruler’s obedience to natural law, then it is not likely to make any difference in terms of how the commonwealth is governed. The citizenry may not appreciate the difference between a totalitarian who recognizes no higher morality than his own will and a totalitarian who pays lip service to natural law while violating it. Yes, a natural law theorist would say that a citizen is not bound to obey unjust laws and may actually bound to actively disobey them, but John Austin coldly points out that, if you break a law on the grounds that it violates natural law, the Court of Justice can refute your reasoning by hanging you.
A desirable constitution, therefore, would make natural law effective by officially disallowing legislation that contradicts reason and the common good. Such a system we will call “prescriptive constitutionalism”. We can observe certain features about it.
Firstly, natural law is a democratic idea. Morality is not the province of an exclusive priestly or philosopher caste, but is accessible to everyone with a rational nature--in other words, to all human beings. Thus, in prescriptive constitutionalism, the whole people will be involved in passing laws, and the government derives its authority from the people generally.
However, given that the people can have their own wills and passions stirred up into unreason by demagoguery, an ideal government would not a pure democracy but would also contain more “sober” elements insulated from momentary mistakes of the masses. A prescriptive constitution is therefore a “mixed” constitution. And, since any of these branches could err in ruling justly (we have established that the practical reason can make mistakes about the application of justice), other branches would have the power to strike down their laws should they do so. This is roughly what Aquinas advocated for: a “political monarchy” which would contain both unelected and elected powers that would moderate each other and be ultimately accountable to the people, which could revoke its power if it became unjust.
So far, so good. But there is a danger that looms over all constitutions. If one government power can veto another, and another can, in turn, veto it, we will eventually ascend the pyramid of authority until finally we come to an “unmoved mover” which can overturn other laws, but whose laws no one else can overturn. In other words, this branch--whether it consists of elected officials, hereditary aristocrats, or judges--would be effectively supreme over the rest of the government. We could call whichever branch this happens to be the sovereign, or, in John Austin’s language, the “uncommanded commander”.
It is true that the sovereign in such a situation might officially be bound by the text of a constitution, but, if they have a carte blanche to interpret that text without anyone to contradict them, then we are in basically the same situation as Bodin’s absolutist leader who is nominally subject to the laws of God. An absolute leader can find ways to interpret any document in a way favourable to them. The great mathematician Kurt Gödel, as he was fleeing the Nazis in his native Germany into the United States, claimed that he had found a loophole in the American constitution that would allow for a dictatorship. A text which is subject to different interpretations is not, in itself, a protection. Thus, despite some separation of powers, we would be right back to the situation having an absolute ruler. This is such an easy trap to fall into that Filmer saw absolutism as inevitable: "We do but flatter our selves, if we hope ever to be governed without an arbitrary power."
Dramatic as the language may sound, the sovereign in such an arrangement legislatively has the unchecked power of God. This is what the German jurist and political philosopher Carl Schmitt drew attention to when he observed that all political concepts were secularized versions of theological concepts and that the sovereign (“he who determines the exception”, in Schmitt’s definition) is a kind of secular God. Given that Schmitt was the chief jurist for the Nazi regime, it is easy to see where this thinking leads.
To avoid this absolutism, a mixed constitution should not only contain checks and balances but should be composed in such a way that no branch of government consistently has final, unchecked authority over the others. There should, as much as possible, be no final sovereign. In some constitutions, it is solely the legislature’s job to repeal unjust laws and create better ones; in others, the judiciary also has that power. But neither is infallible, and no criteria exists to determine which one is more likely to rule justly than the other (which will likely vary based on the circumstances anyways). Neither branch, therefore, should be absolutely sovereign over the other.
Jacques Maritain made a similar point to Schmitt, but from the opposite perspective. He criticized the idea of political sovereignty from a theological perspective on the grounds that sovereignty belongs to God alone. Pierre Trudeau studied Maritain and other personalist philosophers, so it is not unreasonable to see Maritain’s influence on the Charter, or to understand yet another dimension of “the supremacy of God” as being that the government should not have a clear, absolute sovereign standing in the place of God, but should spread power as much as possible among its different branches. The will of rulers will thereby be curbed by the rational superstructure of the constitution.
We therefore have a definition of “him who has the care of the community” and of a prescriptive constitution, which, like reason in the individual, curbs, suppresses, or redirects the will and impulses of the state in accordance with natural law. With that in mind, we will consider what this looked like in the Middle Ages.