Brian Tamanaha invoked Aquinas to support his criticism of the Attorney General's ideological screening of DOJ applicants. Patrick Brennan objected to this particular use of Aquinas. Now Brian offers this response:
Patrick and I don’t disagree about Aquinas. I assert that Aquinas supported the rule of law, that Aquinas recognized the logical and pragmatic problem that the sovereign/prince cannot be bound to the rule of law because a coercive power cannot coerce itself, and that Aquinas concluded that only by a commitment of his will can the sovereign be bound to the law, and he urged that sovereigns should make this commitment (for “whatever law a man makes for another, he should keep for himself"). Patrick does not dispute any of these points.
Where we disagree is in how (or whether) these views might be relevant to recent events at the Justice Department. One can legitimately object that the situations are so different that there is no direct relevance, but it is nonetheless useful to draw on Aquinas’s thought to help reflect upon the situation.
I suggest that in our system the Justice Department embodies and wields the coercive power of the “sovereign,” and that the modern equivalent of Aquinas’s position entails that lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law. My argument was that systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law. This is based upon my assumption that the ideological vetting is being done with the specific aim of filling the Department with lawyers who will apply the law in a manner that furthers desired ideological goals.
With respect to this crucial issue, Patrick says only this: “The screening may raise people’s worries that they’ll be incapable of following the law that has been laid down, but that’s another matter.” He then moves off to discuss other aspects of Aquinas’s thought (which I do not raise).
Patrick can wave off the very point of my post as “another matter,” but perhaps I can put it in terms that will help demonstrate that this worry about the screening is precisely what matters. Rather than hire only Republicans with religious beliefs, as apparently was the case, let’s say that, in the next administration, rigid ideological vetting is implemented to hire only pro-choice Democrats, or only atheists. Surely Patrick would object to this, and correctly so, as an attempt to undermine the rule of law by institutionalizing an ideological bias among the lawyers in the Department. And that was my point.
In the Washington Post, former Bush speechwriter Michael Gerson reports on the growing power of the global south within Christianity, prompted by Nigerian (Anglican) Archbishop Peter Akinola's installation of a missionary bishop to America. An excerpt:
Some American religious conservatives have embraced ties with this emerging Christianity, including the church I attend. But there are adjustments in becoming a junior partner. The ideological package of the global south includes not only moral conservatism but also an emphasis on social justice, an openness to state intervention in markets, and a suspicion of American economic and military power. The emerging Christian majority is not the Moral Majority.
But the largest adjustments are coming on the religious left. For decades it has preached multiculturalism, but now, on further acquaintance, it doesn't seem to like other cultures very much.
Notre Dame law prof Paolo Carozza has just posted a 2003 paper that is well worth reading titled Subsidiarity as a Structural Principle of International Human Rights Law. Here is the abstract:
This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves.
Looking at the place of subsidiarity in international law generally, the article argues that subsidiarity is a more accurate and powerful way of understanding the relationship of human rights to international law and to the roles of states in the global community. Using the constitutional structure of the European Union as a starting point, the article presents subsidiarity as a conceptual alternative to classic notions of state sovereigny, which relativizes but does not eliminate the roles of nation states. The analysis shows that in many ways, subsidiarity is already immanent in the existing structures and doctrines of international human rights law, and provides a better explanation for a number of otherwise problematic features of international human rights law, such as the “margin of appreciation” and reservations to universal human rights treaties.
Finally, the article defends the idea and use of the principle of subsidiarity against critiques that resist the legal pluralism that subsidiarity fosters and protects. It argues that philosophical, legal and political objections to pluralism in international human rights law are misdirected, and that an international legal system structured in accordance with subsidiarity can best combine the values of universality and diversity that respect for human rights requires.
Ask the person on the street about bold action taken by John Ashcroft as Attorney General, and the most frequent response might involve the concealing of nude statues. Not anymore. Even if Aquinas wouldn't necessarily oppose Alberto Gonzales's ideological screening of DOJ applicants, can anyone imagine the Angelic Doctor pulling a stunt like this? What does this say about Gonzales's respect for the rule of law?
