As presented to the United States Senate, Articles of Impeachment concerning Donald J. Trump will focus upon various pertinent elements of Constitutional and statutory law. Still, at least in part, this country’s most hallowed and fundamental legal foundations lie elsewhere. More precisely, these “peremptory” legal foundations are discoverable in Natural Law,[1] an immutable and dignifying set of binding rules that applies eternally, to all peoples. It follows that to best protect the United States from the egregious and continuous derelictions of US President Donald J. Trump, these incontrovertible rules – here considered as corollary jurisprudential arguments – should (a) be more explicitly identified; and (b) be more gainfully applied. Accordingly, this timely essay can inform the upcoming US Senate trial with both authority and purpose.
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In considering US President Donald Trump and applicable Articles of Impeachment, Senators ought not confine their inquiries and remedies to codified legal sources. This is because certain equally relevant jurisprudential sources lie latent in this nation’s antecedent legal principles – precepts generally known as Natural Law. Accordingly, these principles will need to be (1) more fully and expressly identified; and (2) more conspicuously “factored in” to any authoritative judgment.
There are several possible ingredients to a proper and promising inquiry. Less obvious than the clearly codified articles of the US Constitution, these ingredients begin with various critical concepts, including the hard-to-measure scientific property known as “synergy.” In medicine, engineering and military planning, just to supply some helpful examples, synergy denotes an interactive outcome (whether foreseen or unforeseen) wherein the “whole” of an examined combination is calculably greater than the sum of its “parts.”
Today, though generally ignored in political assessments, this term can be used to help predict and understand how certain personal traits of America’s incumbent president could combine in bewildering and ominous ways. Though more-or-less unexpected, such “force-multiplying” combinations could substantially degrade US foreign and national security policies, perhaps to the point of fostering an imminent nuclear war. Arguably, a synergistic combination of presidential anti-intellectualism and historical illiteracy is already dragging the United States toward irretrievable decline.
The relevant reasons here are not indecipherable.
Hardly.
Unhidden, America’s current president inhabits his alleged convictions like a worm in the fruit.
His faith, such as it is, serves only as a pretext for further Twitter convulsions and for more intolerably repressive moral and legal capitulations.
For the most part, President Donald Trump does not think; instead, he erupts.
Recall that this is an American president who “loves the poorly educated” and prefers the visceral chanting of crowds (the “base”) to any intellectual or scientific exertions.
Openly, Donald Trump is an American president who proudly abjures any recognizable processes of reasoning or disciplined thought, and does so with unbounded hubris and a very evident pride.
Always, rather than be persuaded to read or think seriously, Donald Trump prefers to dissemble.
But why be surprised?
“Intellect rots the brain,” warned Third Reich Propaganda Minister Joseph Goebbels.
“I love the poorly educated,” bragged then presidential candidate Donald Trump in 2016.
In principle, certain plausible synergies between the personal traits of US President Donald Trump (i.e., intra-personal interactions) could produce devastating consequences. These cumulative interactions could sometime portend an insufferable nadir of national declension, a point of realistically “no return.”
How shall all this be fixed? Among other things, of course, capable legal scholarship is required. But how should such needed scholarship be launched most effectively?
In its apparent and presumptively well-justified considerations of proper impeachment options, the US Congress must first agree to rank order this country’s national security obligations ahead of any and all other possible considerations.
It’s an obvious and not unreasonable citizen expectation.
No proposed hierarchy could conceivably be more important.
To proceed, the mainstream of any legitimate and purposeful presidential removal preparations should focus continuously on the (1) presumptively codified and better-known “High Crimes and Misdemeanors” expectations of the US Constitution;[1]and (2) various overlapping provisions of US statutory law. Certain other less readily recognizable legal obligations could also be needed. Once capably prepared with this strategic and jurisprudential background more clearly in mind, Members of the Senate could best identify and evaluate permissible grounds for protecting an increasingly imperiled American democracy.
In candor, to preserve a nation moving quickly toward the “precipice,” it’s not really too much to ask.
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Though less well-known, there exist several “peremptory”[2] principles of jurisprudence that could be properly applicable to all seriously conceived impeachment motions. These relatively esoteric but still valid principles concern Higher Law underpinnings of the United States. Such basic expectations represent vital national security principles that together could help protect Americans from presidentially-inflicted harms.
Again, recalling the expanding nuclear weapons context of world politics, such harms could sometime display existential qualities.[2]
Pertinent issues are primarily legal in both nature and form. Moreover, in relevant jurisprudential terms, we must necessarily begin at the beginning. Remembering the celebrated jurist A.P. d’ Entrevesclassic text on Natural Law (Oxford University Press, 1951): “The Natural Law (Higher Law) is absolutely binding, and overrules all other laws.” From the standpoint of any still-to-be considered impeachment strategy, this recollection could point the way to much more usefully broad bases for any US presidential removal.
Soon, a critical and overarching question should be brought to the floor at the US Senate trial. How can such a peremptory or “jus cogens” declaration be effectively operationalized in any prospective presidential impeachment action? The comprehensive essay that follows represents a jurisprudentially-informed response to this most basic and already indispensable query.
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“In the beginning….” For the United States, the principle of a Higher Law has always been more than just “any principle.” It is, rather, one of the most fully enduring and canonic principles in the country’s recognizable legal foundation.[3] Revealed, inter alia, in both the Declaration of Independence and in the Constitution,[4] it rests solidly and incontrovertibly upon the willing acceptance of right and justice for their own sake.
In other words, for the United States, considerations of right and justice have never been narrowly instrumental. On the contrary, they have always remained unwavering and determinative.
Such foundational principles, as famed 18th century jurist William Blackstone once declared,[5] represent nothing less than “the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions.”[6]
Plainly, Thomas Jefferson was a learned US president, even at a time when laborious study was vastly more complicated and difficult than it is today. When Jefferson – without benefit of electric light, air conditioning, central heating, computers or even a manual typewriter – set to work on the Declaration, he drew productively upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and most prominently – John Locke (Second Treatise of Government).[7] Asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,”[8] the Declaration of Independence posits a discernible natural order in the world, one whose irreducible laws are external to human will and remain eternally discoverable through staunchly determined applications of human reason.[9]
Although, by the eighteenth century, God had been “withdrawn” from any immediate philosophical contact with humankind , and had already been transformed into the Final Cause or Prime Mover of the universe, “nature” still remained available as both a convenient and capable substitute.[10]
There is much more. Reflecting the unique influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as a recognizable expression of divine will.[11] Reciprocally, however, the only true way to ever truly “know” this original will of God was to first discover the underlying and eternal Law of Nature.
In essence, Locke and Jefferson had deified nature and “denatured” God.[12]
But what exactly was this purported “Law of Nature,” a basic law that is accepted in the Declaration and Constitution as a continuously binding set of obligatory norms, and which could still pertain to a present-day American president? Above all, Jefferson learned from Locke, such law was a necessary source of Reason: Still more exactly, according to Locke’s Second Treatise:
The state of nature has a law to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….
In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men….
A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed on one, declared war against all mankind.[13]
As reason is the only sure guide to what God has given to humankind, it must inevitably become the only reliable foundation of true law. This Lockean and Jeffersonian idea of a transcendent or Higher Law is made manifest not only in the Declaration of Independence, but also in the Constitution.[14] Inter alia, the Ninth Amendment, in stipulating that “the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,”[15] reflects codified belief in a perpetual law that is justly superior to any expressed will of human governance.
This vital conviction runs continuously from ancient times, especially traditional Jewish Law,[16] up to the present intellectually detached “Trumpian moment.” The evident roots of such a prospectively lethal detachment lie in a broadly cast indifference to anything based upon Reason and a more person-specific indifference to history. What ought we ever really expect from a president who unambiguously prefers “attitude” to “preparation?”
There is still more. The Fragments of Heraclitus attest to the venerable antiquity of a Higher Law: “For all human laws are nourished by one, which is divine. For it governs as far as it will, and is sufficient for all, and more than enough.”[17] Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered easily into later Stoic philosophy and already described a universal and expectedly rational body of human law. Hard as it may be to imagine amid American politics in 2019, this intellectual corpus was familiar to many of the Founding Fathers.
In 442 B.C.E., Sophocles further clarified the idea of all true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone.[18] Already exploring the inevitable conflicts between claims of the state and those of individual conscience, this classic challenge has since been taken to represent the supremacy of a proper Higher Law overall man-made law – now an incontestable supremacy. Later, in the nineteenth century, American Transcendentalist philosopher Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,”[19] cited directly to Antigone as a stirring example of “civil disobedience.” Still later, in these United States, the derivative legal and ethical conclusions of Antigone were learned and conceptually embraced by Martin Luther King.
It follows that the authority of Natural Law already has an authentic history in American society and politics. Ipso facto, it is not “merely” a pompous invention of certain interested philosophers and university professors. Or in more lay-person parlance, Natural Law already “has legs.”
But now back to the philosophers. Building upon Plato’s theory of Ideas,[20] which sought to elevate “nature” from the merely transient sphere of contingent facts to the much “higher” realm of immutable archetypes or Forms,[21] Aristotle advanced in his Ethics the derivative concept of “natural justice.”[22] Quoting the Antigone, he argued (in a posture of perpetual significance) “an unjust law is not a law.”[23] This irreducible position stands in markedly stark contrast to the more instrumental opinion of the Sophists – i.e., that justice is never more than an expression of supremacy, that it is only what Thrasymachus cynically calls, in Plato’s Republic, “the interest of the stronger.”[24]
Were he actually made aware of such scholarly origins and underpinnings, US President Donald Trump would assuredly judge himself to be among contemporary “Sophists.” This clarifying acknowledgment, to be sure, would be uttered openly by Mr. Trump, and with unmitigated pride.
More precisely, apropos of President Donald Trump’s jurisprudentially disjointed presidency, this visibly crude brand of Realpolitik has become the openly acknowledged philosophic foundation of current U.S. foreign policy. Left unmodified by timeless principles of a Higher Law, the deleterious consequences for America and the wider world are not difficult to decipher.[25]
Prospectively, these consequences include very tangible US declensions into catastrophic war,[26] potentially even a nuclear war. Notable, in this regard, is the ongoing expansion of what might best be termed “Cold War II” with Russia; simultaneously, the undiminished nuclearization of North Korea and the ongoing recombination of ISIS Jihadist terrorists under the banner of al Qaeda. Significantly, along all of these cited dimensions of decline, a sitting American president is evidently complicit.
Once again, history can be instructive. The Stoics, whose legal philosophies arose on the threshold of the Greek and Roman worlds, regarded nature itself as humankind’s supreme legislator.[27] Applying Platonic and Aristotelian thought to a then-hopefully emerging cosmopolis, they defined this nascent order as one wherein humankind, by means of its allegedly established capacity to reason, can commune directly with the gods.[28] As this definition required further expansion of Plato’s and Aristotle’s developing notions of universalism, the Stoics consciously articulated a further division between lex aeterna, ius natural and ius humanum.[29]
Lex aeterna is the law of reason of the cosmos, the logos which rules the universe. As an emanation of cosmic reason, human reason, it is assumed, rules the lives of men. It follows that natural law partakes of eternal law, though it has a more limited range of application. Unlike the more elitist conception of Plato (and, to a certain extent, even Aristotle), the Stoic idea of an innate “right reason” presumed no meaningful divisions between peoples.[30]
Instead, in linking all persons with the cosmic order, it established the essential foundations of an authentic and immutable universality.
Cicero, in De Republica, had defined the state as a “coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages.”[31] This definition shed a useful light on the problems surrounding positivist jurisprudence, a legal philosophy that values any state’s edicts as intrinsically just and therefore obligatory.[32] In a suitably famous passage of De Republica, one well known to Jefferson and other Founders, Cicero sets forth the still classic articulation of Natural Law:
True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions…. It is a sacred obligation not to attempt to legislate in contradiction to this law; nor may it be derogated from nor abrogated. Indeed, by neither the Senate nor the people can we be released from this law; nor does it require any but oneself to be its expositor or interpreter. Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time….[33]
It goes without saying that US President Donald Trump has literally no acquaintance with any such still-binding or “peremptory” ideas.
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But what is to be done when positive law (which now includes US Constitutional and statutory law) is at variance with “true law”? The Romans had a remedy in all such challenging matters. They simply incorporated into their various statutes a contingency clause that man-made law could never abrogate those obligations that are inherently right or presumptively even sacred.[34] On several occasions, Cicero and others actually and meaningfully invoked this clause, or jus, against one particular statute or another.[35] In this way, the written law of the moment, never more than an artifact of the extant civic community, remained correctly subject to “right reason.”
Later, St. Augustine reaffirmed that temporal law must always conform to the unchangeable eternal law,[36] which he had earlier defined as “the reason or will of God (ratio divina vel voluntas Dei).”[37] Aquinas continued this tradition of denying the status of law to prescriptions that are inherently unjust (lex iniusta non est lex).[38] “Human law,” he wrote in the Summae,[39] “has the quality of law only insofar as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. Insofar as it deviates from reason it is called an unjust law, and has the quality not of law, but of violence.”[40]
The concept of a Higher Law, later to figure so importantly in the legal development of the United States of America, was widely integrated into medieval jurisprudential thought.[41] In John of Salisbury’s Policraticus, “There are certain precepts of the law which have perpetual necessity, having the force of law among all nations and which absolutely cannot be broken.”[42] Recognizing the idea that all political authority must be intrinsically limited, John noted that the prince “may not lawfully have any will of his own apart from that which the law or equity enjoins, or the calculation of the common interest requires.”[43]
“…. or the calculation of the common interest requires.” Viewed against the backdrop of the current US president – now, correctly analogous to the medieval “prince” discussed by John of Salisbury – such “perpetual law” must of necessity prohibit any presidential placement of personal interest over the discernibly “common interest” of the United States. Natural Law, inter alia, still exists to frustrate political injustice, a vital function that could soon become material to any authoritative launch of impeachment proceedings against Donald Trump.
In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius,[44] the “father” of all modern international law. Reviving the Ciceronian idea of Natural Law and its underlying optimism about human nature, Grotius is credited with liberating this idea from any once-remaining dependence on ecclesiastical or Papal interpretation.[45] Building upon the prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and the universal validity of human rights,[46] Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.[47]
In this connection, he strengthened the idea of a universally valid Natural Law, one transcending in obligation all human law, including the cumulative positive law of any single sovereign state.[48] This is an idea, of course, that lies at the conceptual heart of US law, but it also entirely alien to the understanding or vision of current US President Trump.
Unlike Machiavelli and Hobbes,[49] Grotius did not consciously reduce law to any presumed will of a prince or a separate state.[50] Rather, while recognizing such will as a properly constitutive element within the much wider international legal order, he also understood that the binding quality of human edicts must always be derived from a more overriding totality of “natural” imperatives.[51] Accordingly, he proceeded to reject raison d’etat as a just cause for war,[52] a purposeful rejection that may sometime no longer resonate in US President Donald Trump’s personal ideas of governance.
This brings us directly to the conveyance of Natural Law ideas into American political theory, a transmittal that was preeminently the work of Locke’s Second Treatise on Civil Government (1690).[53] The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations”[54] flows largely from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights.[55] Regarding any prospective excursions into US presidential impeachment, the motto that Jefferson chose for his own seal was, “Rebellion to Tyrants Is Obedience to God.”[56]
As for the right to pursue happiness, which Jefferson drew largely from Burlamaqui’s incorporation into natural law,[57] it had nothing to do with today’s shallow presidential celebrations of raw commerce and exaggerated materialism. Not at all.
Nor could this right have any bearing on any soon-to-be contemplated US presidential impeachment proceedings. Though happiness was viewed by Jefferson (in plausible deference to Pufendorf and Locke) as a welcome condition to be achieved as the direct result of humankind’s overriding commitment to reason,[58] never specified were any corresponding or corollary presidential obligations.
Above all, the Declaration of Independence implemented a fundamental social contract that sets limits on the power of any government.[59] Its most central purpose, therefore, was to better articulate a set of universally valid constraints upon absolutely all secular political authority. Moreover, as justice, which is necessarily based on natural law, binds all human society, the rights described by the Declaration of Independence could never be reserved only to Americans.
Instead, by ready and verifiable deduction, they must extend to all human societies, and can never be rendered subject to abrogation by positive law. Today, this general applicability of an imperative to “do justice” is routinely ignored by an American president who is utterly disinterested in human rights, especially on those matters regarding immigration to the United States and the granting of refugee or asylum status. Notably, such matters of international law are ipso facto binding upon the United States, both by virtue of the ubiquitous and universal natural law, but also in consequence of the US Constitution (especially Art. VI, the “Supremacy Clause”) and various leading US Supreme Court decisions (especially the Pacquete Habana, 1900).
The compelling theory of a Higher Law, which should have a designated useful place in any forthcoming impeachment proceedings that would indict President Trump regarding his very evident disregard for worldwide human rights, is based on clarity, self-evidence, and coherence. Its legal validity, it follows, can never be shaken by any presumed presidential imperatives of geopolitics or “America First,” As noted by the Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence had discovered important and usable maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”[60]
Prudently, Vattel had cautioned that only a strict obedience to higher legal obligations can produce a virtuous and thereby safe and prosperous state: “One would have to be very ignorant of political affairs not to perceive how much more capable a virtuous Nation is of forming a happy, peaceful, flourishing and secure state, respected by its neighbors and formidable to its enemies.”[61] Going forward with any Senate impeachment proceeding, Vattel’s earlier wisdom could sometime have its proper and utilitarian place. At a minimum, it could stand as an unchallengeable corrective to the manifestly unjust imperatives of “America First.
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In the end, as duly informed Trump impeachment advocates will surely need to understand, Higher Law expectations of the American political tradition can never be self-enforcing. Instead, defied again and again by transient political elites, they can only be sustained where individual citizens prepare to act (as does Antigone before Creon[62] ) according to conscience. “Why has every man a conscience,”[63] asks Thoreau in his foundational American essay on Civil Disobedience.
I think that we should be men first,
and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.[64]
Where are such “conscientious men” (and of course women) to be found? Certainly not, says Thoreau insightfully, among the “commonly esteemed good citizens.”[65] These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”[66]
Placing themselves “on a level with wood and earth and stones,”[67] these creations of the “mass” (the Danish philosopher Soren Kierkegaard would prefer the term “crowd”) are incapable of making any essential moral or legal distinctions. This incapacity is easily enough recognized today, where so many of our fellow citizens remain unwilling to acknowledge the brutally stark differences between prima facie presidential wrongdoing and legally correct presidential behavior.
Could the United States still create the conditions for a conscientious “corporation” though the enhanced education of an informed citizenry? From Rousseau to the present, this has been the preferred path of virtually all democratic theory. Rousseau believed that law and liberty could best exist in a city-state of properly educated voters like Geneva:
He stipulates in Book III of the Social Contract:
First, a very small state where the people can be readily got together and where each citizen can with ease know all the rest; secondly, great simplicity of manners, to prevent business from multiplying and raising thorny problems; next, a large measure of equality in rank and fortune, without which equality of rights and authority cannot long subsist; lastly, little or no luxury – for luxury either comes of riches or makes them necessary.
But the contemporary United States is not at all like Geneva, and Rousseau’s idea that (even under very specified conditions) a majority can be trusted with what is really best for “The People” is too-often mistaken. Now, the dangers of the “general will” have been made manifest not only in the exploits of Robespierre and Napoleon, but also in the stunningly inauspicious selection of US President Donald Trump and his generally anti-historical/anti-intellectual followers.
Whether this selection shall lead to proper and pragmatic efforts at presidential removal is still unclear.
There is more. Rousseau’s deification of The People actually points toward the very opposite of our own Higher Law tradition. The Genevan made “The People” sovereign; for us, ultimately, sovereignty must somehow come to reside in The Citizen. Earlier, as Thoreau had understood, apathy, complacency, passivity and moral cowardice are the inevitable qualities found in the “mass” of men and women. True hope, therefore, can lie only in those residually still-thoughtful individuals whose primary allegiance is directed toward properly overriding and universal laws; that is, not in the presumptive “good citizen,” but rather in the indispensable “wise minority.”
It is time to finally inquire: What is the real task of this body of enlightened persons, one which could in fact represent a true and distinct majority in formation? Thoreau speaks truthfully of civil disobedience, one still possible act of “counter-friction.” Now, confronted with an American president who could bring unparalleled harms to the United States, suddenly or in unanticipated increments – as we have seen, such harms could soon include even the onset of a catastrophic nuclear war[68] – Thoreau would urge, as he once did about still-earlier policy deformations (see Civil Disobedience),: “Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
To this point, most visibly at partisan political levels, Thoreau’s earlier wisdom has fallen on variously deaf Congressional ears.
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This essay has been exploring jurisprudential remedies to the grievously injurious Trump Presidency, most obviously “ordinary” impeachment proceedings rooted in the US Constitution. Should this particular remedy be pursued to conclusion in the Senate (structurally, there could likely be no other proper legal remedies, as the Supreme Court has already clarified that presidential impeachment is necessarily a non-justiciable matter[69]), those Members directly involved with appraising and applying the Articles of Impeachment should also avail themselves of related Higher Law arguments. This augmented path is suggested because: (1) the Constitution of the United States is indisputably and perpetually constructed upon core principles of Natural Law; and (2) these antecedent and overriding legal principles are ultimately binding upon absolutely all citizens and all government officials.
On March 19, 2018, Watergate figure John Dean said to Anderson Cooper on CNN: “Trump is Nixon on steroids and stilts.” While merely the subjective opinion of one person, this was a revealing metaphor. Unambiguously, US President Donald Trump represents a uniquely serious threat to US. national security.[70] Although, for some Americans, any such allegation could seem logically or institutionally implausible – after all, a US president is presumptively always preserving, protecting and defending our national security – the urgently plain facts concerning major Trump transgressions are both manifest and compelling.
As long as “We the People” remain willing to take the US Constitution seriously – and not just as a musty old document to be invoked for adornment, ceremony and ostentation, or as selective justification for unregulated gun ownership – there can be no legitimate legal reasons for senators to resist Articles of Impeachment.
To evaluate such prospectively important Articles, careful attention ought to be paid not only to applicable statutory and Constitutional expectations, but also to the everlasting Higher Law traditions of the United States. While less explicit and thereby much harder to identify an operationalize, these core traditions and pertinent legal norms are in no way inferior to what had previously been codified. Accordingly, they should never be minimized or intentionally disregarded.
Basic and immutable elements of the Western Higher Law tradition should figure importantly in any still-upcoming effort to protect the United States from a catastrophic American presidency. Such jurisprudence-based efforts at protection are not only justifiable, but indispensable. As Roman statesman Cicero had already understood more than 2000 years ago, “The safety of the people shall be the highest law.”
In the current United States, the “safety of the people” can no longer automatically be trusted to the president. As corollary, the genuine “enemy of the people” here is not a free press, but rather an aberrant government that would openly side with the pernicious enemies of democracy. This authentic “enemy of the people” is now an aspiring demagogue who shamelessly cheers historical illiteracy and popular deception.
This is a president who freely offers: “I love the poorly educated.”
The significant hazards we now face as a nation ought not to be viewed singly, or in contrived isolation from one another. It is only in their calculably cumulative impact that we can accurately foresee the most prospectively ominous harms.[71] Indeed, it is in various plausible synergies that these unique hazards could sometime become staggering or unendurable to a vulnerable American nation.
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NOTES
[1] Significantly, the Constitution does not precisely spell-out the content of any such crimes, and it is entirely reasonable to maintain that certain US presidential violations of Natural Law could be just as representative of “High Crimes and Misdemeanors” as anything discoverable in authoritative statute.
[2] See, by this author: https://thebulletin.org/what-if-you-don%E2%80%99t-trust-judgment-president-whose-finger-over-nuclear-button9794
[1] Under international law, the idea of a Higher Law – drawn originally from the ancient Greeks and ancient Hebrews – is contained, inter alia, within the principle of jus cogens or peremptory norms.
[2] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
[3] See Edward S. Corwin, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Alexander P. D’Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (1951).
[4] See: U.S. Constitution, Art. IX. According to Clinton Rossiter, there exists a “deep-seated conviction” among Americans “that the Constitution is an expression of the Higher Law, that it is, in fact, imperfect man’s most perfect rendering” of eternal law. See Rossiter, preface to Corwin, supra, at vi.
[5] Blackstone’s Commentaries, of course, provided the core foundations for America’s current legal system. It is unlikely, of course, that even a tiny handful of US representatives or senators are remotely aware of this juridical primacy.
[6] Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….” See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V.,”Of Offenses Against the Law of Nations.”)
[7] See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).
[8] See THE DECLARATION OF INDEPENDENCE
[9] See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, “Natural Law.”
[10] Here, in the Deist view, Nature had “replaced” God as the source for lawful behavior.
[11] Newton says famously in his Principia: “This most beautiful system of the sun, planets, and comets could only proceed from the counsel and dominion of an intelligent and powerful Being.” Cited by Abraham Kaplan, IN PURSUIT OF WISDOM: THE SCOPE OF PHILOSOPHY (Beverly Hills CA: Glencoe Press, 1977), p. 550.
[12] See Stone, supra, Ch. VIII.
[13] See Locke, supra, 123.
[14] See The Bill of Rights, as detailed in the following discussion.
[15] See U.S. Constitution, Ninth Amendment.
[16] The fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only source of all Jewish law. In the Talmudic position, “Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai.” (See Jerusalem Megillah IV, 74d.)
[17] See Sec. 81, Fragment No. DK 22B114 of THE PRESOCRATICS 75 (Philip Wheelwright ed. Bobbs-Merrill 1960). The authoritative text for the fragments of Heraclitus is Hermann Diels & Walther Kranz, DIE FRAGMENTE DER VORSOKRATIKER (6th ed., Weidmann 1966).
[18] A century before Demosthenes, Antigone’s appeal against Creon’s order to the “unwritten and steadfast customs of the Gods” had evidenced the inferiority of human rule-making to a Higher Law. Here, in the drama by Sophocles, Creon represents the Greek tyrant who disturbs the ancient harmony of the city state. Aristotle, in his RHETORIC, quotes from Sophocles’ ANTIGONE when he argues that “an unjust law is not a law.” See RHETORIC 1, 15, 1375, a 27 et seq.
[19] See Henry David Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE, in WALDEN, OR LIFE IN THE WOODS AND ON THE DUTY OF CIVIL DISOBEDIENCE (Signet 1960).
[20] Plato’s theory, offered in the fourth century B.C.E, seeks to explain politics as an unstable realm of sense and matter, an arena formed and sustained by half-truths and distorted perceptions. In contrast to the stable realm of immaterial Forms, from which all genuine knowledge must be derived, the political realm is dominated by the uncertainties of the sensible world. At the basis of this political theory is a physical-mental analogy that establishes a correlation between the head, the heart and the abdomen, and the virtues of intelligence, courage and moderation.
[21] Supra.
[22] See Corwin, supra, at 7.
[23] Id.
[24] “Right is the interest of the stronger,” says Thrasymachus in Bk. I, Sec. 338 of Plato, THE REPUBLIC (B. Jowett tr., 1875). “Justice is a contract neither to do nor to suffer wrong,” says Glaucon, id., Bk. II, Sec. 359. See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[25] In this connection, however, noted Sigmund Freud: “Wars will only be prevented with certainty if mankind unites in setting up a central authority to which the right of giving judgment upon all shall be handed over. There are clearly two separate requirements involved in this: the creation of a supreme agency and its endowment with the necessary power. One without the other would be useless.” (See: Sigmund Freud, Collected Papers, cited in Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10 (1973-73), p, 27.)
[26] Under international law, the question of whether or not a condition of war actually exists between states is somewhat unclear. Traditionally, a “formal” war was said to exist only when a state made a formal declaration of war. The Hague Convention III codified this position in 1907. This Convention provided that hostilities must not commence without “previous and explicit warning” in the form of a declaration of war or an ultimatum. See Hague Convention III on the Opening of Hostilities, Oct. 18, 1907, art. 1, 36 Stat. 2277, 205 Consol. T.S. 263. Presently, a declaration of war may be tantamount to a declaration of criminality because international law prohibits aggression. See Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1948, art. 1, 46 Stat. 2343, 94 L.N.T.S. 57 (also called Pact of Paris or Kellogg-Briand Pact); Nuremberg Judgment, 1 I.M.T. Trial of the Major War Criminals 171 (1947), portions reprinted in Burns H. Weston, et. al., INTERNATIONAL LAW AND WORLD ORDER 148, 159 (1980); U.N. Charter, art. 2(4). A state may compromise its own legal position by announcing formal declarations of war. It follows that a state of belligerency may exist without formal declarations, but only if there exists an armed conflict between two or more states and/or at least one of these states considers itself “at war.”
[27] See Corwin, supra, at 9: “The Stoics…thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.” Salmond, JURISPRUDENCE 27 (7th ed., 1924), cited in Corwin, supra, at 9.
[28] Id.
[29] These terms are defined and discussed below.
[30] See Corwin, supra, at 9.
[31] Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D’Entreves, THE NOTION OF THE STATE 24 (1967).
[32] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, 224-230. Stone calls positive law “…the law actually enforced by organized society in a particular place at a particular time.” (p. 225) Understood in terms of natural law, positive law is merely a necessary evil, tolerable and valid only to the extent that it coincides with natural law. In this theory, says Julius Stone, “Not only does natural law provide the criterion for judgment whether positive law is just. It goes further and provides the criterion for deciding whether positive law is valid law at all.” (Id., at 226)
[33] See Cicero, I DE LEGIBUS, cited in Corwin, supra, at 10; D’Entreves, supra., at 20 – 21. Similarly, in his DE OFFICIIS, Cicero wrote: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal…. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” (cited by Stone, supra, at 216.) See also DE LEGIBUS, Bk. i, c, vii; cited by Stone, supra, at 216.
[34] See Corwin, supra, at 12.
[35] Id, at 13.
[36] See D’Entreves, supra, 36 – 37. In early Christendom, Augustine offered a system of thought that identified the locus of all global problems in the human potentiality for evil. Combining a philosophy of Neo-Platonism with a view of the universe as a struggle between good and evil, he attributed the trials of humankind to the taint of original sin. This view, transformed into a secular political philosophy, is now reflected by exponents of the school of realism or realpolitik. Augustine, writing at the beginning of the fifth century C.E., sets out, in the CITY OF GOD, to describe human history as a contest of two societies, the intrinsically debased City of Man and the eternally peaceful City of God. In this contest, the state, the product of humankind’s mostbase tendencies, is devoid of justice and destructive of salvation. A mirror image of human wickedness, the state is little more than a “large gang of robbers.” In an oft-quoted passage, Augustine recalls the answer offered by a pirate who had been captured by Alexander the Great. When asked by Alexander what right he had to infest the seas, the pirate replied: “The same right that you have to infest the world. But because I do it in a small boat I am called a robber, while because you do it with a large fleet you are called an emperor.”
[37] See Julius Stone, HUMAN LAW AND HUMAN JUSTICE (Stanford CA: Stanford University Press, 1965), p. 44. For Augustine, this reason or will of God “commands us to preserve the natural order and prohibits us to disturb it.” (See Contra Faustum, XXII, 27; cited by Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 44.
[38] Thomas Aquinas recalls Augustine as follows: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’Entreves, supra, pp. 42 – 43.
[39] See D’Entreves, supra, at 42 – 43.
[40] The importance of reason to legal judgment was prefigured in ancient Israel, which accommodated reason within its system of revealed law. Jewish theory of law, insofar as it displays the marks of natural law, offers a transcending order revealed by the divine word as interpreted by human reason. In the striking words of Ecclesiasticus 32.23, 37.16,13-14: “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….”
[41] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.
[42] See Corwin, supra, at 17 – 18.
[43] Id., at 19.
[44] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 – 68.
[45] Id.
[46] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.
[47] Id, pp. 65 – 68.
[48] Id.
[49] The sixteenth-century Florentine philosopher, Niccolo Machiavelli, joined Aristotle’s foundations for a scientific study of politics with assumptions of realpolitik to reach certain conclusions about politics. His most important conclusion underscores the dilemma of practicing goodness in an essentially evil world: “A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good.” (See THE PRINCE, Chapter XV). Recognizing this tragic state of affairs, Machiavelli proceeds to advance the arguments for expediency that have become synonymous with his name. With the placing of the idea of force at the center of his political theory, the author of THE PRINCE stands in sharp contrast to the Platonic and early Christian concepts of the “good.” Rejecting both Plato’s arguments that there is a knowable objective “good” that leads to virtue, and Augustine’s otherworldly idea of absolute goodness, Machiavelli constructs his political theory on the assumption that “all men are potential criminals, and always ready to realize their evil intentions whenever they are free to do so.” In his instructions to the statesman on how to rule in a world dominated by force, he advises “to learn how not to be good.” The seventeenth-century materialist and social philosopher, Thomas Hobbes, elaborated a complex system of thought in which man was reduced to a state of nature and then reconstructed. Seeking a science of human nature that would have the rigor of physics, Hobbes looked to introspection as the source of genuine understanding: “Whosoever looketh into himself and considereth what he doth when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men, upon the like occasions.” (See Introduction to LEVIATHAN). The results of such an analysis of one’s own thought processes led Hobbes to his celebrated theory of the social contract: the natural egoism of man produces a “war of all against all” in the absence of civil government and must be tempered by absolute monarchy. Moreover, the condition of nature, which is also called a condition of war marked by “continual fear, and danger of violent death,” has always been the characteristic condition of international relations and international law: “But though there had never been any time, wherein particular men were in a condition of war one against another; yet, in all times, kings, and persons of sovereign-authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war.” (See LEVIATHAN, Chapter XIII).
[50] This is because the principal Grotian effort was to “translate” natural law from pure philosophical speculation into a pragmatic legal ordering. See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 65.
[51] Id.
[52] The Swiss scholar, Emmerich de Vattel, notes – in his 1758 classic THE LAW OF NATIONS: “No agreement can bind, or even authorize a man to violate the natural law.” See Albert de LaPradelle, Introduction to Emmerich de Vattel, LE DROIT DES GENS (THE LAW OF NATIONS) (Charles G. Fenwick, tr., 1916).
[53] See Corwin, supra, at 61.
[54] Id.
[55] Id.
[56] See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).
[57] J.J. Burlamaqui, author of PRINCIPES DU DROIT DE LA NATURE ET DES GENS (1774) was a Swiss scholar who held a Chair at the University of Geneva. His work has been described by J. Stone and others as “rational utilitarianism.” See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 71.
[58] See Corwin, supra, p. 81.
[59] Id.
[60] See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
[61] Id.
[62] See Sophocles, ANTIGONE, supra.
[63] See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of LEVIATHAN, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.”
[69] See Nixon v. United States, 506 U.S. 224 (1993).
[70] Warned John Brennan, former Director of Central Intelligence: “When the full extent of your venality, moral turpitude, and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history. You may scapegoat Andy McCabe, but you will not destroy America…America will triumph over you.” (Tweet, March 17, 2018). Somewhat less precisely, but to the very same conclusion, John Dean of Watergate era fame/notoriety said on CNN (19 March 2018): “Trump is Nixon on steroids and stilts.”
[71] To some extent, at least, such harms could stem from various effects of “Cold War II.” In this connection, by definition, hypothesizing the emergence of a new Cold War means expecting the world system to become increasingly bipolar. For early conceptual writings by this author on the global security implications of any such expanding bipolarity, see: Louis René Beres, “Bipolarity, Multipolarity, and the Reliability of Alliance Commitments,” Western Political Quarterly, Vol. 25, No.4., December 1972, pp. 702-710; Louis René Beres, “Bipolarity, Multipolarity, and the Tragedy of the Commons,” Western Political Quarterly, Vol. 26, No.4., December 1973, pp, 649-658; and Louis René Beres, “Guerillas, Terrorists, and Polarity: New Structural Models of World Politics,” Western Political Quarterly, Vol. 27, No.4., December 1974, pp. 624-636.
Source: Modern Diplomacy