Lawless: Obamacare and Federal Power

by Anthony Esolen

When referring to the nationalizing of medicine known as the Affordable Care Act, Speaker of the House Nancy Pelosi said, “We have to pass the law to see what’s in it.”

“[Law] is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated,” said Thomas Aquinas, defending the claim that promulgation is one of the essential characteristics of law (Summa Theologiae, Ia.IIae., q. 90, a. 4).

We should not suppose that promulgation is necessary only as a practical matter, since it is not possible to be certain that one is obeying the law unless one knows what the law is.  It is also necessary because law is meant for rational beings.  It is not something extrinsic to the lawgiver or the law-receiver, for “the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect” (q. 92, a.1), by the virtue it inculcates.  Since virtue is a habit in accord with reason, the law must be capable of entering into the minds of those who must obey it, not so that they may deliberate about it, since the deliberation will already have been completed, but so that they may order themselves by it.  For example, “the natural law is promulgated by the fact that God has instilled it into man’s mind so as to be known by him naturally” (q. 90, a.4).  Jonathan Swift understood the point, writing in Gulliver’s Travels of the well-governed Kingdom of Brobdingnag, whose laws could not exceed in words the number of letters in the alphabet, “wherein those people are not mercurial enough to discover above one interpretation.”

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   Professor Anthony Esolen teaches Renaissance English Literature and the Development of Western Civilization at Providence College. A senior editor for Touchstone: A Journal of Mere Christianity, he writes regularly for First Things, Magnificat, This Rock, and Latin Mass. His most recent books are The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008); Ten Ways to Destroy the Imagination of Your Child (ISI Press, 2010) and, most recently, Reflections on the Christian Life (Sophia Institute Press, 2013). Professor Esolen has also translated Dante.