"The legality of the Constitution, its supremacy, and its claim to be worshipped alike find common standing ground on the belief in a law superior to the will of human governors." — E.S. Corwin, The "Higher Law" Background of American Constitutional Law
"The Natural Law (Higher Law) is absolutely binding, and overrules all other laws." — A.P. d'Entreves, Natural Law
Soon, because of his increasingly obvious debilities and wrongdoings, US President Donald Trump could face more-or-less authoritative calls for impeachment. Should this happen, virtually all corresponding legal focus would doubtlessly be directed toward the US Constitution, its expressly pertinent provisions, and also to certain allegedly relevant US Congressional deliberations, Supreme Court decisions, and historical records. Nonetheless, as the United States was unambiguously established upon a core jurisprudential architecture of Natural Law, or "Higher Law," this critical foundation could then also merit close scrutiny as an "auxiliary" impeachment standard.
Such scrutiny and corollary elucidations are prospectively useful if (as should be expected) certain or even all Congressional anti-impeachment elements should choose to rely upon narrowly legalistic interpretations of Article II, Section IV, presidential removal guidelines. As things now stand, the specifically codified criteria for any considered presidential impeachment ("...Treason, Bribery, or other High Crimes and Misdemeanors....") are exceedingly brief and manifestly "terse." It follows that the provision of a significantly broader jurisprudential background proposed here could sometime prove markedly helpful.
To begin, the underlying principle of a Higher Law is not just "any principle." It is, rather, one of the most enduring and utterly canonic principles in the legal development of the United States. Revealed in both the Declaration of Independence and in the Constitution, it rests squarely upon the willing acceptance of certain notions of right and justice that obtain because of their own intrinsic merit.
Such basic notions, as the widely celebrated Blackstone himself declared, are 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."
When Jefferson set to work on drafting the actual Declaration, he drew freely upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and Locke (Second Treatise of Government). Asserting the right of revolution whenever government becomes destructive of "certain unalienable rights," the Declaration of Independence posits a natural order in the world whose immutable laws are external to all human will and which are discoverable through disciplined applications of human reason.
Although, by the eighteenth century, God had "withdrawn" from any immediate contact with humankind, and been transformed into Final Cause or Prime Mover of the universe, "Nature" was still conveniently available to provide for an apt substitute.
Reflecting the uniquely decisive influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as an expression of divine will. Reciprocally, the only true way to know God's will was to first discover the Law of Nature. In essence, Locke and Jefferson had deified nature and "denatured" God.
What, exactly, was this always underlying "Law of Nature"? It was, as Jefferson learned from Locke, a source of Reason: 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.
As Reason is the only sure guide to what God has given to humankind, it then becomes the only credible foundation of true law. This Lockean and Jeffersonian idea of a transcendent or Higher Law is manifest not only in the Declaration of Independence but also in the Constitution. The Ninth Amendment, in stipulating that "the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated," reflects the belief in a law absolutely superior to any will of human governance.
This vital conviction runs continuously from ancient times, especially traditional Jewish Law, up to the present moment.
The Fragments of Heraclitus attest to the 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." Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered into later Stoic philosophy, and described a genuinely universal and expectedly rational law.
In 442 B.C.E., Sophocles explained the idea of true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone. Exploring the essential conflict between claims of the state and those of the individual conscience, this drama has since been taken to represent the incontestable supremacy of a Higher Law over all man-made law. Later, in the nineteenth century, Henry David Thoreau, noting that men live with "too passive a regard for the moral laws," explicitly cited Antigone as a suitably stirring example of civil disobedience.
Building upon Plato's theory of Ideas, which sought to elevate "nature" from the transient sphere of contingent facts to the "higher" realm of immutable archetypes or Forms, Aristotle advanced in his Ethics the concept of "natural justice." Quoting the Antigone, he argued importantly that "an unjust law is not a law." This idealistic position, of course, stands in stark contrast to the instrumental opinion of the Sophists that justice is never anything more than an expression of supremacy, that it is merely what Thrasymachus cynically calls, in Plato's Republic, "the interest of the stronger."
Apropos of President Donald Trump's current presidency, this crude brand of Realpolitik is now also the acknowledged philosophic underpinning of present-day US foreign policy.
Much earlier, the Stoics, whose legal philosophies arose on the threshold of the Greek and Roman worlds, regarded nature itself as the supreme legislator. Applying Platonic and Aristotelian thought to the hopefully emerging cosmopolis, they had defined this nascent order as one wherein humankind, by means of its established capacity to reason, can commune directly with the gods. And since this definition required further expansion of Plato's and Aristotle's developing notions of universalism, the Stoics effectively articulated a further division between 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 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 divisions between peoples.
Instead, in linking all persons with the cosmic order, it established the essential foundations of an authentic universality.
Cicero, in De Republica, 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 sheds light on the problems surrounding positivist jurisprudence, a legal philosophy that values a state's edicts as intrinsically just and obligatory. In a justly famous passage of De Republica, one well known to Jefferson and other Founders, Cicero set 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...
Part 2 of this piece discusses Higher Law as applied to President Trump.
Louis Rene Beres, an Emeritus Professor of International Law at Purdue University, received his Ph.D. from Princeton University in 1971. Dr. Beres is a widely published author on the topics of philosophy and jurisprudence, and his writings have appeared in books, monographs, and law reviews. Dr. Beres is an international expert on nuclear weapons and has also served as a security consultant for the US and Israeli governments.
Suggested citation:Louis Rene Beres, President Trump, Impeachment, and the "Higher Law": Part I, JURIST — Academic Commentary, July 23, 2017, http://jurist.org/forum/2017/07/Beres-president-trump-impeachment1.php
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at firstname.lastname@example.org