Can there be a Thomistic interpretation of constituent power?

We often assume that the concept of a people's power to create a government began with the secular revolutions of the 18th century, yet Thomas Aquinas argued five centuries earlier that the right to frame a political community belongs naturally to the "multitude." While modern theory often views **constituent power**—the primordial capacity to establish a constitutional order—as an unlimited act of collective will, a Thomistic interpretation suggests this power is actually a moral faculty rooted in the requirements of the common good. ## The Source of Political Form In the Thomistic tradition, the community is not a mere collection of individuals but a purposeful association. For [Thomas Aquinas](https://plato.stanford.edu/entries/aquinas-moral-political/), the authority to create law and establish a regime is not an arbitrary gift of a monarch, but a property of the people themselves as they seek to realize a virtuous life. > "The making of a law belongs either to the whole people or to a public personage who has care of the whole people: for in all cases the directing of anything to the end concerns him to whom the end belongs." — *Summa Theologiae*, [I-II, q. 90, a. 3](https://www.newadvent.org/summa/2090.htm#article3) In this light, constituent power is the community’s natural capacity to give "form" to its political existence. Unlike the modern view championed by Abbé Sieyès, which often characterizes constituent power as being "outside" and "above" the law, the Thomistic interpretation insists that this power is always already subject to **Natural Law**. ## Potestas vs. Auctoritas To understand a Thomistic constituent power, one must distinguish between the raw ability to coerce (*potestas*) and the moral right to command (*auctoritas*). The community possesses a "radical" constituent power because God, as the author of nature, has not designated specific rulers by divine right. Instead, the community mediates this power, choosing its specific constitutional form (monarchy, aristocracy, or democracy). However, this power is teleological—it has a built-in purpose. A Thomistic interpretation would argue that: 1. **Constituent power is not absolute:** The people cannot "constitute" a regime that violates fundamental justice or the common good. 2. **It is an act of Reason, not just Will:** Creating a constitution is an exercise of "architectonic" prudence, aiming to harmonize different social elements. 3. **The community remains the primary subject:** Even after a government is established (*pouvoir constitué*), the community retains a latent power to reclaim its authority if the ruler turns into a tyrant, as the original "grant" of power was conditional. ## Toward a Tethered Sovereignty While modern [Constitutionalism](https://plato.stanford.edu/entries/constitutionalism/) struggles with the "paradox of the constituent power"—how a lawless power can create a lawful system—Thomism resolves this by grounding the constituent act in the pre-political obligations of the Natural Law. The "people" do not create right and wrong; they create the institutional mechanisms to protect what is already right. ### Further Inquiry - If constituent power is limited by the common good, who has the authority to judge when a constitution has deviated from that end? - How does the Thomistic "multitude" differ from the modern "nation" as the subject of constituent power? - Can a Thomistic framework justify a "right to revolution" as a re-assertion of original constituent power?

While Thomas Aquinas provided the philosophical blueprint for political authority, it was the 16th-century Spanish Jesuit **Francisco Suárez** who first systematized these insights into a rigorous theory of constituent power. In his monumental work *De Legibus* (1612), Suárez transformed Aquinas's general principles into a legal mechanism known as the **Transfer Theory** (*translatio imperii*), arguing that political power resides immediately in the community as a whole by natural law. ## The Jesuit Challenge to Absolute Monarchy The formalization of Thomistic constituent power emerged not as a dry academic exercise, but as a high-stakes theological intervention against the **Divine Right of Kings**. Thinkers like King James I of England argued that monarchs received their authority directly from God, bypassing the people entirely. [Francisco Suárez](https://plato.stanford.edu/entries/suarez/) countered this by asserting that God grants power to the "perfect community" (*communitas perfecta*) rather than any specific individual. This makes the people the primary subject of power, possessing a natural right to determine their own constitutional form. > "Political power is not vested in any one person, nor in any special group of persons, but in the whole body of the people... by the very nature of things, this power resides in the community." — Francisco Suárez, [*De Legibus*](https://archive.org/details/selectionssurrez00suaruoft), III, ii, 3. ## The Mechanism of the Translatio Suárez introduced a critical nuance to the Thomistic framework: the distinction between the **origin** of power and its **exercise**. 1. **Original Possession:** The community possesses the power of self-governance as a natural property. It is "constituent" because the community has the inherent capacity to give itself a political "being." 2. **The Act of Transfer:** The community does not merely "delegate" power (which could be revoked at any whim); it **transfers** (*translatio*) it. This creates a stable constitutional order where the ruler holds legitimate authority, provided they serve the common good. 3. **Residual Power:** Crucially, Suárez argued that the community never entirely alienates its power. If a regime fails to fulfill its purpose or turns into a tyranny, the power "reverts" to the community. This logic provided the intellectual foundation for what we now recognize as the right to resist or reconstitute a failed state. ## A Tension with the Modern Social Contract It is a common misconception to equate Suárez's "Transfer Theory" with the later Social Contract theories of [Thomas Hobbes](https://plato.stanford.edu/entries/hobbes-moral/) or Jean-Jacques Rousseau. For Suárez, the "multitude" is not a chaotic mass of individuals entering a contract for self-preservation. Instead, the community is a **moral unity** already directed toward the common good by natural law. Unlike the modern constituent power described by the [Abbé Sieyès](https://en.wikipedia.org/wiki/Emmanuel_Joseph_Siey%C3%A8s), which is often seen as a "lawless" force of pure will, Suárez’s constituent power is a **reasoned response** to the requirements of human nature. The community is not creating "right" from nothing; it is creating the institutional "form" required to manifest a justice that is already objectively binding. This makes the Suárezian interpretation a "middle way" between monarchical absolutism and the unconstrained radicalism of modern secular sovereignty.

If the French Revolution was intended to be the ultimate divorce between politics and the Church, it failed to notice that its central protagonist—the "Nation"—was a theological ghost. While the Foundation established how Francisco Suárez built a legal bridge for power to pass from God to the people, it was the controversial 20th-century legal theorist [Carl Schmitt](https://plato.stanford.edu/entries/schmitt/) who offered the first rigorous genealogical link between the radicalism of [Emmanuel Joseph Sieyès](https://en.wikipedia.org/wiki/Emmanuel_Joseph_Siey%C3%A8s) and the medieval Scholastic tradition. ## The Nation as a Secularized God Schmitt’s breakthrough in his 1928 work, [*Constitutional Theory* (Verfassungslehre)](https://archive.org/details/constitutional-theory-carl-schmitt), was to demonstrate that Sieyès’s "constituent power" (*pouvoir constituant*) was not a sudden invention of Enlightenment secularism. Instead, it was a secularized version of the Thomistic "multitude." Schmitt argued that when Sieyès described the Nation as an "originary, self-originating power" that exists prior to all laws, he was simply transposing the attributes of the Scholastic God—and by extension, the *multitudo*—into the political realm. In this view, the Nation is the "unformed former" of all legal structures, a concept that mirrors the Thomistic idea of the community as the primary subject of natural law. > "All significant concepts of the modern theory of the state are secularized theological concepts... not only because of their historical development... but also because of their systematic structure." — Carl Schmitt, *Political Theology* (1922). ## From Translatio to Permanent Presence The "Thomistic interpretation" of Sieyès provided by Schmitt and later developed by [Jacques Maritain](https://plato.stanford.edu/entries/maritain/) reveals a subtle but profound shift in the mechanics of power. While the Suárezian *translatio* (as seen in the Foundation) suggested that the people "transfer" their power to a ruler, Schmitt’s reading of Sieyès suggests that the constituent power is **permanent and inalienable**. 1. **The End of Alienation:** For Suárez, the transfer of power creates a stable, separate government. For the Sieyèsian-Scholastic hybrid, the people never truly "exit" the stage. 2. **The State of Exception:** Schmitt utilized this Thomistic root to explain the "emergency": if the people are the ultimate source of power (as Aquinas argued), then they must remain "above" the constitution they created, ready to intervene when the legal order fails. 3. **The Formless Will:** Unlike the modern social contract, which relies on individual consent, this interpretation sees the Nation as a **moral entity** that acts with a singular will, much like the "perfect community" described in Jesuit political thought. ## The Tension of Immanence This interpretation creates a productive tension. If Sieyès’s "Nation" is just the Scholastic "Multitude" in a tricolor hat, then the radicalism of the French Revolution is actually a return to a pre-modern understanding of community. However, there is a dangerous departure: whereas the Thomistic multitude was bound by **Natural Law**, the Sieyèsian Nation is often seen as bound by nothing but its own will. By identifying the Thomistic structure within Sieyès, thinkers like Schmitt and Maritain forced modern democracy to confront its own hidden religious architecture, suggesting that "the people" function in modern law exactly where "God" functioned in medieval law.