Abstract: Ideas of Natural Law were crucial in drafting the US Constitution. These seminal ideas were made known to document “framers” largely by way of William Blackstone’s Commentaries on the Laws of England. The Commentaries represent the truest philosophic origins of America’s legal system. In these dissembling times of recurrent political manipulation, Blackstone’s work warrants wider and much more deeply-informed considerations.
Core Origins of US Law
What do we really know about the core origins of United States jurisprudence? Prima facie, Americans know distressingly little about long-established principles of “Natural Law” a.k.a “Higher Law.” Still binding and “peremptory,” this country’s widely-neglected Constitutional foundations lie in those perpetual and immutable rules applicable to all peoples for all time. These always overriding precepts were well-known to America’s Founders, most notably Thomas Jefferson, Benjamin Franklin, James Madison, Alexander Hamilton and John Jay.
Though perhaps difficult to believe in our starkly anti-intellectual times, the American Founders were themselves proudly intellectual. In contrast to this nation’s most recent former president, tangible differences could not have been more evident. Among other evident law-defiling liabilities, Donald J. Trump was a president who never read. Just a mere glance at the images of his January 6, 2021 Capitol-storming surrogates – some of them shirtless or wearing all manner of bizarre costume – does not leave the impression that this desecrating Trump “mass” had been reading Blackstone or even the US Constitution directly.
Not ever.
It is apparent that Trump himself never so much as glanced at this nation’s defining document. The only more worrisome and lamentable fact is that tens of millions of Americans found this president’s openly proclaimed disavowal of responsibility acceptable. Some followers even found it commendable.
A key question arises. In legal terms, where does the United States go from here? As a start, all who are seriously interested in United States jurisprudence and policy-making ought to consider jurist A.P. d’Entreves’ classic text on Natural Law: “The Natural Law (Higher Law) is absolutely binding,” declares d’Entreves, “and overrules all other laws.”
For the United States, this legal axiom has always meant far more than just “any principle.” It represents, rather, one of the most enduring and canonic premises of this country’s legal edifice. It was most conspicuously evident in US led international criminal law prosecutions at Nuremberg after World War II.
What are clarifying details? As expressed in the US Declaration of Independence and the US Constitution, the Natural Law/Higher Law rests upon a willing acceptance of right and justice for their own sake, without political exception and in absolutely all relevant matters. Now, after Donald Trump, it is high time to take such peremptory rules seriously.
In candor, there will be few American legislators who could even begin to understand or clarify any derivative jurisprudential arguments, but there is little available choice for the United States. As a pertinent case in point, diehard supporters of the former president’s most egregiously lawless behavior have sometimes been able to invoke exculpatory legal principles by selectively cherry picking statutory norms and strategically “interpreting” particular Constitutional law elements in narrowly technical terms. Though seemingly couched in proper jurisprudential language, such capacities have generally been law-defiling.
There is more. At a moment when authoritative legal codifications are widely believed to be self-explanatory, opportunities for self-serving political manipulations are growing rapidly and without meaningful opposition. While a number of individual US states make it harder for citizens to exercise their Constitution-based right to vote, peremptory principles of “equal protection” are now routinely being subordinated to ostentatiously partisan gibberish.
How can any still-virtuous nation remedy such expansively insidious political behaviors? One way would limit narrowly-technical manipulations of Constitutional law codifications by invoking suitable augmentations of Natural Law. This way has never been taken seriously before, but there does come a time when jurisprudential learning actually matters.
Primary Considerations of Right and Justice
For the United States, original considerations of right and justice were intended to stand perpetually above any fiercely subjective or adversarial politics. Even today, such principled considerations, as 18th century jurist William Blackstone once clearly declared, 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.”
Unmistakably, Thomas Jefferson was a learned US president, erudite and well-read at a time when serious study was more difficult than it is today. When Jefferson – without any palpable benefits of electric light, air conditioning, central heating, computers or even a manual typewriter – set to work on his Declaration, he drew productively upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and (most prominently) John Locke (Second Treatise of Government). Famously asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,” the Declaration of Independence posits a readily-discernible natural order in the world, one whose immutable and irreducible laws are external to human political will and that remain discoverable for all time via deliberate applications of human Reason.
In the expressly Deist view embraced by America’s Founders, Nature/Reason essentially replaced God as the per se final source of authoritative lawful judgment. This is still not a matter well understood by American politicians, especially those who continue to stand by the law-violating postures of former President Donald J. Trump. But what exactly constitutes the overriding “Law of Nature,” a law accepted in both the Declaration and Constitution as continuously binding? Above all, as Jefferson was able to draw seamlessly from John Locke, such law must remain an always-indispensable source of Reason.
From Heraclitus to a Higher Law
Among other venerable sources, the Fragments of Heraclitus attest to the antiquity and authoritativeness 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.” Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered easily into later Stoic philosophy and described a universal and expectedly rational body of human law. Hard as it may be to imagine amid American politics in 2021 and beyond, this impressive corpus was well familiar to many of the Founding Fathers.
Those people actually read books; indeed, serious and intellectually challenging books.
It was a very different “ruling class.”
In 442 B.C.E., in his Antigone, Sophocles clarified the idea of law as an act of discovery, thereby challenging any still-presumed superiority of human rule-making. Exploring the inevitable conflict between claims of the state and those of individual conscience, this challenge has since been taken to represent and underscore the incontestable supremacy of Higher Law over man-made law. Later, in the nineteenth century, American Transcendentalist philosopher Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,” cited directly to Antigone as a useful example of “civil disobedience.” Still later, in the United States, the derivative legal and ethical conclusions of Antigone were learned and embraced by civil rights icon Martin Luther King.
Though too little understood or acknowledged, the authority of Natural Law has a well-defined history in American society and American politics. On its face, it is not “merely” a pompous invention of interested philosophers or ethereal university professors. As may now be expressed in lay-person parlance, Natural Law “has legs.”
Americans may return to Plato and Aristotle for further guidance. Building upon Plato’s theory of ideas, which sought to elevate “nature” from the distressingly transient sphere of contingent facts to the “higher” realm of immutable archetypes or Forms, Aristotle advanced in his Ethics the derivative concept of “Natural Justice.” Quoting the Antigone, he argued (in a juridical posture of perpetual significance) “an unjust law is not a law.” This irreducible position on law and justice stands in stark contrast to the narrowly instrumental opinion of the Sophists – i.e., that justice is never more than an expression of de facto supremacy, or what Thrasymachus describes “realistically” in Plato’s Republic as “the interest of the stronger.”
Nowadays, especially in light of the January 6, 2021 US Capitol insurrection and its unceasing aftermath, it is not difficult to find distressing commonalities between such justice-denying opinion and specific US political leaders.
Were they somehow made aware of such US origins and jurisprudential underpinnings, former President Donald J. Trump’s loyal supporters would likely identify themselves among present-day “Sophists.” Almost certainly, this “honest” acknowledgment would be endorsed by Mr. Trump, plausibly with unhidden pride of vast doctrinal illiteracy. Apropos of Donald Trump’s presidency, the Sophistic brand of Realpolitik easily became an eagerly embraced foundation of U.S. foreign policy. Left unmodified by the timeless and universal principles of a Higher Law, the deleterious consequences of any such view for this nation and the democratic wider world were easy to predict. For a time, at least, these consequences could have included certain tangible US declensions into catastrophic war, potentially even a nuclear war.
History can always 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. Applying Platonic and Aristotelian thought to a then-hopefully emerging cosmopolis, they defined this nascent order as one wherein humankind, by means of its seemingly well-established capacity to reason, can commune directly with the gods.
As this definition required further expansion of Plato’s and Aristotle’s developing notions of universalism, the Stoics very consciously articulated a further division between the terms lex aeterna, ius natural and ius humanum.
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 and women. 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. Instead, in linking all persons with the interrelated cosmic order, it established the essential foundations for an authentic and indispensable universality or “human oneness.”
The Contributions of Cicero, St. Augustine and Aquinas
In De Republica, Cicero 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.” 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. In a suitably famous passage of De Republica, one well known to Jefferson and to other Founders, Cicero set forth the 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….
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 such challenging circumstances. 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 sacred.
On several occasions, Cicero and others meaningfully invoked this clause, or jus, against one particular statute or another. 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.” Plausibly, similar invocations could prove sensible in the still-ongoing US legal struggle against Donald J. Trump’s multiple derelictions.
But back to the classical legal foundations of our present moment. St. Augustine reaffirmed that temporal law must always conform to the unchangeable eternal law, which he had earlier defined as “the reason or will of God (ratio divina vel voluntas Dei).” Aquinas continued this tradition of denying the status of law to prescriptions that were inherently unjust (lex iniusta non est lex). “Human law,” he wrote in the Summae, “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.”
Again, such classical legal commentaries could prove gainful to current and still-expanding legal challenges to various violence-prone legacies of Donald J. Trump.
The concept of a Higher Law, later to figure importantly in the early legal development of the United States, was integrated into medieval jurisprudential thought. In John of Salisbury’s Policraticus, we learn: “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.” 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.”
“…. or the calculation of the common interest requires.” Viewed against the backdrop of the now-former US president – 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 failed to become materially relevant to Trump’s two impeachment trials in the US Senate.
From the Grotian Moment to Thomas Jefferson
In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius, 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. Building too upon prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and on the universal validity of human rights, Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a new interstate society.
In this connection, Grotius strengthened the idea of a universally valid Natural Law, a system of norms transcending in obligation all human law, including the cumulative positive law of any single sovereign state. This is an idea that lies at the conceptual heart of all US law, but it also entirely alien to the understanding or vision of former US President Trump’s most dogged followers.
There is more. Unlike Machiavelli and Hobbes, Grotius did not consciously reduce law to any presumed will of a prince or a separate state. Rather, while recognizing such will as a properly constitutive element within the much wider international legal order, he had also understood that the binding quality of human edicts must always be derived from a larger totality of “natural” imperatives. Accordingly, he proceeded to reject raison d’etat as a “just cause” for war, a purposeful rejection that ceased to resonate in Donald Trump’s personal ideas of presidential governance.
This brings Americans directly to the conveyance of Natural Law ideas into political theory, a key transmittal that was preeminently the work of John Locke’s Second Treatise on Civil Government (1690). The Declaration-specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations” flows largely from Locke’s seminal notion that civil authority can never extend beyond securing humankind’s natural rights Regarding still-ongoing legal struggles between Donald J. Trump and valid American sources of law enforcement, the motto that Jefferson chose for his own private seal was: “Rebellion to Tyrants Is Obedience to God.”
The right to pursue happiness, which Jefferson drew largely from Burlamaqui’s specific incorporation into natural law, had nothing to do with Trump’s shallow presidential celebrations of raw commerce, belligerent nationalism and exaggerated materialism. In any event, by any discernible standards of judgment, the United States has likely never been an unhappier society than it was during the dissembling “Trumpian Moment.”
Though happiness was viewed by Thomas Jefferson (in plausible deference to Pufendorf and Locke) as a welcome condition, one to be achieved as the plausible result of humankind’s presumed commitment to reason, left unspecified were any corresponding or corollary presidential legal obligations.
The Declaration of Independence implements a fundamental social contract that sets limits on the powers of any government. A central purpose, though not generally known, was to better articulate a set of universally valid constraints upon all secular political authority. As justice, which is ultimately based on Natural Law, binds all human society, the particular rights described by the Declaration of Independence can never be reserved exclusively to Americans. When Trump-Era US foreign policies violated core elements of international human rights law, including the authoritative law of war or the law of armed conflict, there were simultaneously created various relevant issues of US “command responsibility.”
It’s not all complicated. By ready and verifiable deduction, natural rights must extend to all human societies and can never be rendered subject to abrogation by positive or national law. Recently, this general applicability of an immutable imperative to “do justice” was blithely ignored by an American president who remained openly disinterested in human rights, most notably on those matters regarding immigration to the United States and on related issues of granting refugee or asylum status. Prima facie, such expectations of international law are binding upon the United States by virtue of the ubiquitous and universal Natural Law, but also in direct 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 Natural Law or Higher Law, which should occupy a discernible place in any future legal assessments of former President Donald J. Trump, is based on clarity, self-evidence and coherence. Its overriding legal validity can never be shaken by any presumed US presidential prerogatives of being “above the law.” As noted by Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence discovered important and usable maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”
Vattel, like Blackstone, cautioned that only a strict obedience to higher legal obligations can produce a virtuous, 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.” Earlier, when the US Senate was going forward with well-founded impeachment proceedings, Vattel’s wisdom could have held a pragmatic or utilitarian place. At a minimum, it could have represented an unchallengeable corrective to the manifestly unjust and law-violating behaviors of Donald J. Trump.
Henry David Thoreau: His Successors and the Higher Law
In the end, Higher Law expectations of the American political tradition can never be self-enforcing. Rather, defied again and again by transient political elites, these expectations can be sustained only where Reason-directed individual citizens first prepare to act (as does Antigone before Creon according to conscience). “Why has every man a conscience,” 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.
Where are such “conscientious men” (and women) to be found? Certainly not, says Thoreau, among the “commonly esteemed good citizens.” These mass men and women serve the state “not as men mainly, but as machines, with their bodies.” More correctly, of course, these people don’t serve the state at all, but only various political organizations (e.g., parties) as narrowly compliant partisans. Increasingly, even after Trump, such “service” includes gratuitous rancor and escalating personal violence.
Placing themselves “on a level with wood and earth and stones,” these creations of the “mass” (the Danish philosopher Soren Kierkegaard would have preferred the term “crowd;” the German philosopher Friedrich Nietzsche the “herd”) are incapable of making essential moral or legal distinctions. This incapacity was easily enough recognized in the corrosive Trump Era, where many United States Senators, inter alia, remained unwilling to acknowledge the visibly stark differences between presidential wrongdoing and lawful 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:
Accordingly, 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 like Geneva; Rousseau’s cherished idea that a majority (even under very specified conditions) can be trusted with what is best for “The People” is too-often mistaken. Dangers of the “general will” were manifest not only in the chronicled historical exploits of Robespierre and Napoleon, but also in the persistently dissembling presidency of Donald J. Trump.
How shall we best conclude? Rousseau’s deification of The People points unerringly toward the very opposite of America’s own Higher Law tradition. The Genevan made “The People” sovereign; for Americans, at least ultimately, sovereignty must come to reside in The Citizen. Earlier, as Thoreau had also understood, apathy, complacency, passivity and moral cowardice express the inevitable qualities found amid the “mass” of men and women. True hope, therefore, can lie only in those residually thoughtful individuals whose primary allegiance is directed toward an overriding and universal Natural Law; that is, not in the presumptive “good citizen,” but in the always-indispensable “wise minority.”
Now 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, a still-possible act of “counter-friction.” Closing an era dominated by a consistently law-violating American president Donald J. Trump, such harms could include the onset of a genuinely catastrophic war. 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 plainly at certain partisan political levels, Thoreau’s earlier wisdom has fallen on deaf ears. At the same time, Americans have been able to witness a growing number of law-supporting individuals and institutions.
Concluding Thoughts and Pertinent Prescriptions
The Constitution of the United States is erected upon variously core foundations of Natural Law/Higher Law, principles that are perpetually binding upon all persons. This is the case though such fundamental legal expectations are not generally known. While less explicit and harder to identify than expressly codified law, these principles are in no tangible way inferior to statute. They ought never be wittingly minimized or disregarded.
The Reason-based principles of Natural Law/Higher Law represent much more than quaint artifacts of America’s jurisprudential past. As the nation’s current political leaders consider and re-consider a broad variety of critical matters – e.g., US foreign and domestic policy on human rights; US domestic policies on civil rights; issues of war and peace; etc. – there are times when the written law could once again be wrongfully manipulated for self-serving purposes. An example of this not-unprecedented problem would be reactionary political arguments for selective infringements or curtailments of civil rights, arguments that take false refuge in the Second Amendment. Because even the US Constitution is subject to almost any variety of unreasonable interpretations, justice can never be served by this document ipso facto.
In essence, no law-based US codifications, no matter how well intentioned or intelligently conceived, could have incontestable meanings.
Ultimately, the US Constitution, in the same fashion as any other authoritative codification of national or international law, must depend upon the method and human spirit by which it is invoked. In those plausibly foreseeable circumstances where adversarial interpretations would hinge less on any peremptory expectations of order and justice than upon antecedent preferences and prejudices (e.g., questions of gun control and public order), codified law could be very suitably augmented by apt considerations of Natural Law/Higher Law. To be sure, there would always be far-ranging differences on what actually constitutes, per Blackstone, “the eternal, immutable laws of good and evil.” but Natural Law must still remain a final template of legal judgment. This is especially the case for a nation based upon what Cicero termed “Right Reason.”
There is one final observation about international law, which is always a binding part of United States law. During the law-violating Trump years, American foreign policy routinely turned a blind eye to massive human rights violations in certain other countries, including even genocide and genocide-like crimes. In these unforgivable cases, pertinent codifications of US law, including specific provisions of the Constitution, were conveniently interpreted to support certain American wrongdoers. For them, it was all really just a matter of prioritizing Realpolitik over justice. Most conspicuous, among such Trump Era law-violating behaviors, were those policies justified by “America First.”
If more members of the US Congress had been able to remember and defend the immutable primacy of Natural Law – a valuation that could never abide an American president’s craven submission to raw power – this country might still have remained faithful to dignity and justice. But it’s still not too late. The United States now has a president who would never counsel insurrection or even lesser forms of legal dereliction, At the same time, Joseph Biden can expect a law-abiding American nation only if Americans in much greater numbers can begin to acknowledge the principled origins of their country’s Constitutional legal system.
For all who might finally care to look, these origins are readily discoverable in the timeless and universal Law of Nature.
Louis René Beres (Ph.D., Princeton, 1971) is the author of many books and articles dealing with nuclear weapons and world politics. In Israel, he was Chair of Project Daniel (2003). Professor Beres’ most pertinent scholarly writings can be found at Israel Defense and in the Harvard National Security Journal (Harvard Law School); The International Journal of Intelligence and Counterintelligence; The Brown Journal of World Affairs; Yale Global Online; The Bulletin of the Atomic Scientists: Parameters: Journal of the U.S. Army War College; JURIST; The War Room (Pentagon); Modern War Institute (West Point); The Israel Journal of Foreign Affairs; World Politics (Princeton); The Jerusalem Post; International Security (Harvard); and Oxford University Press (Oxford Yearbook of International Law and Jurisprudence). Dr. Beres was born in Zürich, Switzerland, at the end of World War II. His twelfth and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy, Rowman & Littlefield, 2016 (2nd ed., 2018).