JURIST Guest Columnist Louis René Beres of Purdue University, in part two of this two part series, continues his discussion on how Higher Law supports the prospective impeachment of President Trump…

II.

What is to be done when positive law (which now includes US Constitutional law) is at variance with true law? The Romans had proposed a remedy. They incorporated into their statutes a contingency clause that man-made law could never abrogate those obligations that are inherently right or even sacred. On several occasions, Cicero and others invoked this clause, or jus, against one statute or another.

In this way, the written law of the moment, never more than an artifact of the extant civic community, always remained correctly subject to “right reason.”

Later, St. Augustine reaffirmed that temporal law must conform to the unchangeable eternal law, which he 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 are inherently unjust (lex iniusta non est lex). “Human law,” he wrote meaningfully 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.”

The concept of a Higher Law, later to figure so importantly in the jurisprudential development of the United States of America, was widely integrated into medieval thought. According to 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.” 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.”

Viewed against the pertinent backdrop of the current US president – now, correctly analogous to the medieval “prince” discussed by John of Salisbury – such “perpetual law” must necessarily prohibit any presidential executive placement of personal interest over the discernibly “common interest” of the United States. Natural Law, inter alia, exists to frustrate political injustice, a vital function that could soon become material to any authoritative launch of impeachment proceedings against President Donald Trump.

In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius. Reviving the Ciceronian idea of Natural Law and its underlying optimism about human nature, Grotius is credited with liberating this idea from any remaining dependence on ecclesiastical or Papal interpretation. 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, Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.

In this connection, he strengthened the idea of a universally valid Natural Law transcending in obligation all human law, including the cumulative law of any single sovereign state.

Unlike Machiavelli and Hobbes, Grotius consciously did not reduce law to any presumed will of a prince or of a separate state. Rather, while recognizing such will as a properly constitutive element within the wider international legal order, he also understood that the binding quality of human edicts must always be derived from an overriding totality of “natural” imperatives. Hence, he proceeded to reject raison d’etat as a just cause for war, a purposeful rejection that may soon no longer resonate helpfully in President Donald Trump’s United States.

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). The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations” flows from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights. Regarding any considered excursions into US presidential impeachment, the particular motto that Jefferson chose for his seal was, “Rebellion to Tyrants Is Obedience to God.” As for the right to pursue happiness, which Jefferson drew directly from Burlamaqui’s incorporation into natural law, it had literally nothing whatever to do with today’s contemporary celebrations of materialism.

Nor could this right have any bearing on any currently contemplated US presidential impeachment proceedings. Though happiness was viewed by Jefferson (in deference to Pufendorf and Locke) as a welcome condition to be achieved as a direct result of humankind’s overriding commitment to Reason, left unspecified were any corresponding or expressly corollary presidential obligations.

Above all else, the Declaration of Independence implemented a social contract that sets limits on the power of any government. Its central purpose, therefore, was to articulate a set of universally valid constraints upon all secular political authority. Moreover, as justice, which is 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 deduction, these rights must perpetually extend to all human societies, and can never be abrogated by any positive law.

This applicable theory of a Higher Law, which could assume have its useful place in any forthcoming impeachment proceedings that would concern evident Trump Administration disregard for worldwide human rights, is based on clarity, self-evidence, and coherence. Its validity, therefore, can never be shaken by any presumed imperatives of geopolitics, or even by partisan domestic politics. 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 discovered important maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”

Vattel had prudently cautioned that only a strict obedience to higher legal obligations can ever 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.” Going forward with any US House of Representatives impeachment proceeding, even Vattel’s earlier wisdom could sometimes have its proper philosophic place.

III.

In the end, Higher Law expectations of the American political tradition are never self-enforcing. Defied again and again by transient political elites, they can only be sustained where individual citizens 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 insightfully, among the “commonly esteemed good citizens.” These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”

Placing themselves “on a level with wood and earth and stones,” they are frequently incapable of making any essential moral distinctions. This incapacity is easily enough recognized today, where so many of our citizens remain unable to recognize the brutally stark differences between conspicuous US 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. As 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 particularly manifest not only in the exploits of Robespierre and Napoleon, but also in the stunningly inauspicious selection of US President Donald Trump. Whether this selection shall soon lead to proper efforts at essential removal is still unclear.

In any event, 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 come to reside in The Citizen. As Thoreau had understood, apathy, complacency passivity and moral cowardice are the inevitable qualities of the mass of men and women. Hope, therefore, lies only in those 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.”

What is the real task of this body of enlightened persons, one which could in fact represent a true and distinct majority? Thoreau speaks truthfully of civil disobedience, one still possible act of “counter-friction.” Now confronted with an American president who might bring unparalleled harms to the United States – today, such harms could even include the onset of a catastrophic nuclear war – he would urge, as he once did about other 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.”

Here, however, we have been exploring more particularly jurisprudential remedies to the Trump Presidency; specifically, Constitutionally-based impeachment proceedings. Should this species of remediation soon be selected and undertaken (structurally, there could be no other proper legal remedies, as the Supreme Court has made plain that presidential impeachment is always a non-justiciable question), those identifiable Members of Congress most closely involved with drafting and refining the pertinent Articles of Impeachment might usefully avail themselves of these now examined “Higher Law” arguments. This is the case because (1) the Constitution of the United States is firmly constructed upon certain antecedent principles of Natural Law; and because (2) these core legal principles are ultimately made binding upon all citizens and government officials as a fully authoritative Higher Law.

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”, JURIST &#8212 Academic Commentary, July 23, 2017, http://jurist.org/forum/2017/07/Beres-president-trump-impeachment2.php