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Things Fall Apart; The Centre Cannot Hold….

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Core  legal arguments to preserve, protect and defend the United States from the presidency of Donald J. Trump

 Whatever the still-expanding bill of particulars, Donald Trump’s principles of governance remain crudely defiling  in their entirety.Most worrisome, though ignored or merely under-emphasized in current oversight considerations, are prospectively existential harms. In essence, increasingly, this president could sometime wrongly propel the United States toward a catastrophic war. Whether suddenly and disjointedly, as the result of bolt-from-the-blue strategic misjudgment, or more gradually, and in harder to detect increments of  provocation, Mr. Trump – by fiat – could unravel whole generations of US national security preparations. For recent examples, one need only consider: (1) belligerent North Korean nuclearization is accelerating; (2) retreating ISIS fighters in Syria are being recruited into newly-organized al Qaeda or related terror units; (3) Iran no longer feels itself bound by formal constraints that had earlier been operative as the core of a multilateral legal agreement (JCPOA); and (4) Russian President Vladimir Putin is embarked upon a major expansion of national nuclear warfare capabilities. All this is happening while the American president retreats unconcernedly to his manicured golf courses in Palm Beach and elsewhere. Even at its imaginable “best,” an ongoing Trump presidency could place a once justice-centered country on the same side as the world’s most conspicuously anti-democratic regimes. In very little time,  such Trump-led United States regressions could effectively forfeit America’s most hallowed and  well-reasoned legal foundations. These “peremptory” legal foundations lie embedded in Natural Law,[i] an immutable and dignifying set of rules that apply (by definition) (a) to absolutely all peoples; and (b) for absolutely all time.

 When the celebrated Irish poet William Butler Yeats penned “The Second Coming,”[ii] he did not have United States Constitutional law issues in mind. Nonetheless, Yeats’ famously-crafted warnings about “passionate intensity” and  “blood-dimmed tide” should now have a distinctly palpable resonance in American politics. How could they not?

To explain further, a proper inquiry must begin with US President Donald Trump and now urgently-needed remedies to his multiple and steadily-expanding derogations. Significantly, some of these prospective remedies lie latent but dormant in the American nation’s core legal principles. These principles, in turn, will need to be taken more seriously by everyone who might still value a justice-based United States.

How to proceed? There are several possible ingredients to a proper and suitably promising inquiry. Markedly less obvious than codified articles of the US Constitution, these ingredients begin with various critical concepts, including the scientific property known correctly as “synergy.”

In medicine. engineering and military planning,  just to supply helpful examples, synergy denotes an outcome (whether foreseen or unforeseen) wherein  the “whole” of any purposefully examined combination is measurably greater than the calculable sum of its “parts.”

 Today, though generally ignored in ordinary political assessments, this term can be used to help predict and understand how certain personal traits of America’s incumbent president could combine in expressly ominous ways. Though more-or-less unexpected, such “force-multiplying” combinations could substantially degrade US foreign and national security policies, perhaps even to the point of an imminent  nuclear war. Arguably, a plainly 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.

Unhidden, America’s current president inhabits his alleged convictions like a dizzying predator, like a bewildered worm in the fruit.

His faith, such as it is, serves only for justifications of personal and collective belligerence; that is, as a transparent pretext for ritualized Twitter convulsions.

There is more. Recall that this is an American president who “loves the poorly educated” and  prefers the viscerally rhythmic  chanting of “rally”  crowds (the  “base”) to absolutely any intellectual or scientific exertions.

In essence, Donald Trump is an American president who abjures any conceivably recognizable process of disciplined thought, and who does so with incomprehensible pride.

Always, rather than be persuaded to read or think seriously, Donald Trump prefers to erupt.

Why be surprised?

“Intellect rots the brain,” warned Third Reich Propaganda Minister Joseph Goebbels.

“I love the poorly educated,” bragged presidential candidate Donald Trump in 2016.

In principle, at least, certain plausible synergies between the personal traits of US President Donald Trump (i.e., intra-personal interactions) could produce devastating consequences. More precisely, these cumulative interactions could sometime portend an insufferable nadir of national declension, a literal or tangible point of “no return.”

How shall all this be fixed, at least those particular derelictions that have discernibly legal content? Among other things, capable legal scholarship is sorely required. But how exactly should such needed scholarship be launched most effectively? In its apparent and presumptively well-justified considerations of proper impeachment options, the US House of Representatives must first agree to rank order this country’s national security obligations where they rightfully belong.

 This is a position ahead of any and all other possible authoritative considerations.

This reveals an obvious and not unreasonable  citizen expectation.

 No proposed hierarchy could imaginably be more important, especially when there are well-founded concerns for avoiding crises in extremis atomicum.

  Ever.

To proceed, the mainstream of any legitimate presidential removal preparations must focus continuously on the (1) codified and presumptively 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 Congress could best identify and evaluate permissible grounds for protecting an increasingly imperiled American democracy.

To preserve a nation moving ominously toward the precipice, it’s not really too much to ask.

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Though lesser known, there exist several “peremptory”[i] principles of jurisprudence that could prove applicable to seriously conceived impeachment motions. These relatively esoteric but still valid principles concern the Higher Law underpinnings of the United States. Such basic expectations represent vital national security principles that together could help protect Americans from presidentially-inflicted further harms. 

Again, recalling the expanding nuclear weapons context of world politics, such harms could at some point display patently existential qualities.

Here, pertinent issues are primarily legal in both nature and form. In relevant jurisprudential terms, we must 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 a 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 House of Representatives. 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 rudimentary 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  unmistakably one of the most enduring and canonic principles in the country’s acknowledged legal foundation.[ii] Revealed, inter alia, in both the Declaration of Independence and in the Constitution,[iii] it rests solidly and incontrovertibly upon the willing acceptance of  right and justice for their own sake. 

For the United States, considerations of right and justice have never been narrowly instrumental. On the contrary, they have always remained unwavering and meaningfully determinative.

Such  foundational principles, as famed 18th century jurist William Blackstone once declared,[iv] 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.”[v]

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).[vi] Asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,”[vii] 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.[viii] 

 Although, by the eighteenth century, God had been “withdrawn” from any immediate philosophical contact with humankind , and had been transformed into the Final Cause or Prime Mover of the universe, “nature” still remained available as a convenient and capable substitute.[ix]  

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.[x]   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.[xi]

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.[xii]

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.[xiii] Inter alia, the Ninth Amendment, in stipulating that “the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,”[xiv] 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,[xv] 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.”[xvi]   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.

Those people actually read books, serious books.

In 442 B.C.E., Sophocles clarified the idea of true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone.[xvii] 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,”[xviii]  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.

The authority of Natural Law has a well-defined 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 back to the philosophers. Building upon Plato’s theory of Ideas,[xix] which sought to elevate “nature” from the distressingly transient sphere of contingent facts to the “higher” realm of immutable archetypes or Forms,[xx]  Aristotle advanced in Ethics the derivative concept of “natural justice.”[xxi] Quoting the Antigone, he argued (in a juridical posture of perpetual significance)  “an unjust law is not a law.”[xxii]  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.”[xxiii]

 Were he actually made aware of such scholarly origins and underpinnings, US President Donald Trump would assuredly judge himself to be among the contemporary “Sophists.” This clarifying acknowledgment, to be sure, would be uttered openly by Mr. Trump, and even with an unmitigated pride.

Still more precisely apropos of  President Donald Trump’s jurisprudentialy disjointed presidency, this perniciously crude brand of Realpolitik has become the openly acknowledged philosophic foundation of U.S. foreign policy. Left unmodified by timeless principles of a Higher Law, the deleterious consequences for America and for the wider world are not difficult to decipher.[xxiv]

 Prospectively, they include very tangible US declensions into catastrophic war, potentially perhaps  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, the sitting American president is very plainly complicit.

Yet 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.[xxv] Applying Platonic and Aristotelian thought to a then-hopefully emerging cosmopolis, they had defined this nascent order as one wherein humankind, by means of its seemingly established capacity to reason, can commune directly with the gods.[xxvi]  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.[xxvii]

 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.[xxviii]  

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.”[xxix]  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.[xxx] 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….[xxxi]

It goes without saying that US President Donald Trump has literally no acquaintance with any such still-binding or “peremptory” ideas.

                *******

 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.[xxxii]  On several occasions, Cicero and others actually and meaningfully invoked this clause, or jus, against one particular statute or another.[xxxiii]  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,[xxxiv]  which he had earlier defined as “the reason or will of God (ratio divina vel voluntas Dei).”[xxxv]  Aquinas continued this tradition of denying the status of law to prescriptions that are inherently unjust (lex iniusta non est lex).[xxxvi]  “Human law,” he wrote in the Summae,[xxxvii]  “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.”[xxxviii]

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.[xxxix] 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.”[xl]  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.”[xli]  

 “….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,[xlii]  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.[xliii] 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,[xliv]  Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.[xlv] 

 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.[xlvi] 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,[xlvii] Grotius did not consciously reduce law to any presumed will of a prince or a separate state.[xlviii] 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.[xlix]   Accordingly, he proceeded to reject raison d’etat as a just cause for war,[l] 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).[li] The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations”[lii] flows largely from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights.[liii] 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.”[liv] 

 As for the right to pursue happiness, which Jefferson drew largely from Burlamaqui’s incorporation into natural law,[lv] 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,[lvi] 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.[lvii] 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.”[lviii] 

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.”[lix] Going forward with any U.S. House of Representatives 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 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 first prepare to act (as does Antigone before Creon[lx] ) according to conscience.  “Why has every man a conscience,”[lxi]  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.[lxii]

 Where are such “conscientious men” (and of course women) to be found? Certainly not, says Thoreau insightfully, among the “commonly esteemed good citizens.”[lxiii]  These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”[lxiv]  

Placing themselves “on a level with wood and earth and stones,”[lxv] 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[lxvi] –  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 certain jurisprudential remedies to the grievously injurious Trump Presidency, most obviously “ordinary” impeachment proceedings rooted in the US Constitution. Should this particular remedy be selected (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[lxvii]), those Members of Congress directly involved with drafting and refining 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.

Earlier, 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.[lxviii] 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 the US House of Representatives to resist Articles of Impeachment.

To fashion 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 “enemy of the people” here is not a free press, but rather an aberrant  government that would openly side with the enemies of democracy. This authentic “enemy of the people” is now an aspiring demagogue who cheers historical illiteracy and popular deception, a president who freely offers: “I love the poorly educated.”

The significant hazards we now face as a nation ought never to be viewed singly, in contrived isolation, one from the other.  It is only in their cumulative impact that we can ever accurately foresee the most ominous harms. It is, moreover, in various plausible synergies that these unique hazards could sometime become unendurable to the American nation.

It follows from all this that the Natural Law background of the American Constitution could figure importantly in rescuing the United States from an expansively law-violating American president.

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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.


[i]     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).

  [ii]  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).

    [iii]       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.

[iv]          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.

    [v]             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.”)

    [vi]                   See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).

    [vii]                  See THE DECLARATION OF INDEPENDENCE

    [viii]                  See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, “Natural Law.”

    [ix]       Here, in the Deist view, Nature had “replaced” God as the source for lawful behavior.

    [x] 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.

    [xi]       See Stone, supra, Ch. VIII.

    [xii]      See Locke, supra, 123.

    [xiii]      See The Bill of Rights, as detailed in the following discussion.

    [xiv]      See U.S. Constitution, Ninth Amendment.

    [xv]                   The most fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only proper source of Jewish justice.  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.)

    [xvi]      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).

    [xvii]     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.

    [xviii]    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). 

    [xix]      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. 

    [xx]       Supra. 

    [xxi]      See Corwin, supra, at 7.

    [xxii]     Id.

    [xxiii]    “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.

[xxiv]        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.)

    [xxv]     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.

    [xxvi]     Id.

    [xxvii]    These terms are defined and discussed below.

    [xxviii]   See Corwin, supra, at 9.

    [xxix]     Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D’Entreves, THE NOTION OF THE STATE  24 (1967).

    [xxx]     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)

    [xxxi]     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.

    [xxxii]    See Corwin, supra, at 12.

    [xxxiii]   Id, at 13.

    [xxxiv]   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 most base 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.”

    [xxxv]    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.

    [xxxvi]   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.

    [xxxvii]   See D’Entreves, supra, at 42 – 43.

    [xxxviii]              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….”

    [xxxix]   See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.

    [xl]       See Corwin, supra, at 17 – 18.

    [xli]      Id., at 19.

    [xlii]      See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 – 68.

    [xliii]     Id.

    [xliv]     See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.

    [xlv]      Id, pp. 65 – 68.

    [xlvi]     Id.

    [xlvii]    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 argument 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).

    [xlviii]    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.

    [xlix]     Id. 

    [l]  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).

    [li] See Corwin, supra, at 61.

    [lii]       Id. 

    [liii]      Id. 

    [liv]      See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).

    [lv]       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.

    [lvi]      See Corwin, supra, p. 81.

    [lvii]      Id. 

    [lviii]     See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.

    [lix]      Id. 

    [lx]       See Sophocles, ANTIGONE, supra. 

    [lxi]      See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).

    [lxii]      Id. 

    [lxiii]     Id. 

    [lxiv]     Id. 

    [lxv]      Id. 

[lxvi]            “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.”

[lxvii]       See Nixon v. United States, 506 U.S. 224 (1993).

[lxviii]  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).


[i] 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.

[ii] Turning and turning in the widening gyre;

The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world.

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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The Forgotten Analogy: World War II

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Pundits are searching for adequate analogies to explain the growing China-U.S. rivalry and predict its future direction. Two main ones appear: the pre-World War I era and the Cold War. Both have their merits. The early twentieth century pitted Germany, a rising power, against status quo Britain and France. The Cold War also shares similarities to the current situation. The United States engaged in a prolonged struggle to contain a nuclear-armed great power. However, neither the Cold War nor the First World War offers an entirely appropriate analogy to make sense of the current world order.

Wilhelmine Germany was a formidable power but it largely stood alone, cornered in the center of Europe. London, Paris, and Saint Petersburg had an easy time concentrating their forces to balance against Berlin. Although it had Asia as secondary and the rest of the globe as tertiary theaters, the heart of the Cold War was also Central Europe. There were only two great powers, the Soviet Union and the United States, wholly occupied checkmating each other. 

Today’s international politics differs by the number and locations of the main protagonists. Although China legitimately attracts most of the attention, Russia remains a great power. Both China and Russia are the sole great powers of their respective regions — Asia and Europe. Both are bent on correcting the balance of power to their advantage and pushing the United States out of their neighborhood. On its side, Washington has a deep-seated interest in making sure that no great power competitor dominates Asia or Europe because both regions concentrate a big share of the world’s wealth and advanced industries. Indeed, a regional hegemon in possession of such resources would be strong enough to potentially overpower the United States. 

Washington found itself in the same position during the late 1930s and early 1940s. Nazi Germany had become the strongest power on the European continent and seemed bound to dominate all of it. Imperial Japan’s bid for Asian hegemony was unfolding unabated. The Americans had a vested interest in ensuring that neither Berlin nor Tokyo would seize control of their neighborhood because local powers were unlikely to get the job done on their own. It is now Beijing and Moscow occupying these roles.

Asia and China

China is the strongest state in Asia by a wide margin. No regional state can counterbalance Beijing on its own. Even a coalition of current U.S. partners — say Australia, Japan, the Philippines, Taiwan, and South Korea — would likely be too weak to seriously deter China without America’s support and strength. If Washington wants to prevent a Chinese bid for regional hegemony, it needs to throw its weight behind the balancing effort.

During the World War II era, America had to work alongside allies with widely divergent interests (notably Britain, Free France, and the Soviet Union) against the would-be German and Japanese hegemons. In a similar vein, the United States needs to help repair the relations between Japan and South Korea and accommodate those who have had rocky relations with Washington (India, Vietnam) or that are non-democracies (Singapore). The sheer power of China and the challenge of putting together a working balancing coalition imposes to the United States an “Asia First” strategy in the same way that the Third Reich’s superior military and industrial capabilities forced “Europe First” during World War II.

Another similarity with the World War II era is that power dynamics are rapidly changing. In Europe, the primary focus of American planners, Germany was with little doubt the strongest power on the continent. But the balance of power was evolving and the Soviet Union, still reeling from its civil war and Stalin’s purges, appeared to the Germans as a rising threat. Today, Beijing is growingly wary of India, a state as populous as (and very soon, probably more than) China and enjoying economic growth rates superior to China’s.

Europe and Russia

While most Asian states are directly exposed to Chinese military power, the states of Western and Southern Europe are separated from Russia by several other states in-between. Therefore, many European states feel less threatened by Russia and have been slow to balance against Moscow. Although France has been increasing its military spending and Britain vowed to redeploy heavy forces to Germany, these small incremental changes do little to correct the overwhelming military superiority of Moscow. No Western European state is ready or willing to confront Russian power head-on. Europe needs American leadership for that. It is not unlike the late 1930s, when the Soviet Union, separated from Germany by Poland, readily passed the buck of containing Berlin to London and Paris, with disastrous results.

On paper, European states — most notably Britain, France, and Germany — have enough latent capabilities to counterbalance Russian power. But geography and the collective action problem stand in the way. Indeed, Russia is not an immediate threat to Western Europe like the Soviet Union was. Today’s Russian army is unable to threaten the survival of France or Germany due to the East-Central European states acting as a buffer. Even if the Western Europeans acknowledge the resurgence of Russian power and are slowly rearming, they just do not feel the same sense of urgency as in Eastern Europe.

Collective action is difficult when many actors have to provide for a common good. An instinct is to do as little balancing as possible and wait for others to take the mantle of deterring Russia. Also, with no clear leader, effective decision-making is unlikely. Berlin, London, Paris, and others will push for their own preferences, thus resulting in lowest-common-denominator policies and under-balancing. Russia would then be free to cherry-pick its small neighbors and subjugate opposition. Eventually, Western Europeans would balance more effectively; but by the time they do so, Russia will have grown its power base and will already dominate Eastern Europe, thus representing a far more formidable challenge.

NATO is a powerful but imperfect tool to contain a Russian aspirant hegemon. The misaligned interest between many western and southern states and those closest to Russia stands in the way of effective balancing. A potential cure would be to form an additional smaller and more focused alliance system of Poland as the main bulwark, the Czech Republic, Romania, the three Baltic states, and maybe Sweden. In any case, to overcome buck-passing tendencies and problems of coordination, American political leadership is inescapable.

No Easy Fix

Historical analogies are always risky and no situation ever recurs in the exact same way. Yet, if we are to compare the current international situation with a past example, the World War II analogy appears more powerful than the World War I and Cold War ones.

Indeed, the United States faces the same conundrum of having to deal with two formidable rivals on two different continents. World War II had Germany as the most powerful opponent and Europe as the theater concentrating the most resources. Now, both the strongest competitor and the main loot are in Asia. During World War II, U.S. policymakers wanted to focus their forces on taking down Germany but they also had to cope with Japan out of fear that Tokyo would successfully absorb much of East and Southeast Asia and become a far greater threat than it already was. Today, although Russia lacks the power potential of China and Asia has now more wealth than Europe, with potential hegemons in both Asia and Europe, Washington is forced into a gigantic act of dual containment. Therefore, the same dilemma that plagued the United States eight decades ago plagues the Americans of today. 

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There is no roadblock in the way of improving Sino-US ties

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photo: Tehran Times

According to my long-term observations, the challenge that the US strategic circle has been confronted with in assessing Sino-US ties is: How to comprehend China? What is the best strategy for dealing with China? What is the proper topic for researching Sino-American relations? If they have a more objective perspective of China and a more reasonable understanding of China’s growth, there will be less friction between China and the US, and bilateral ties will develop more smoothly. Otherwise, there will be additional difficulties and twists and turns.

Of course, the United States has no shortage of discerning and young people. Nixon and Kissinger, for example, ventured to question American society, “Should the United States open the door to China?” “Should US-China relations be broken?” They had the “Ice-Melting Theory” because the questions they presented were valid. Despite the fact that diplomatic ties have not yet been established, Nixon has decided to visit China as President of the United States.

Such an accomplishment is still remarkable and admirable. Because the topic they propose is appropriate, their efforts will live on in the annals of history and will be remembered in perpetuity. In truth, the Chinese did not have the present degree of awareness of the United States at the time, and the “Cultural Revolution” had not yet finished. Even if the sign on the edge of the Beijing airport welcoming President Nixon remained “Down with US imperialism.”

Despite the removal of the Beijing Airport tagline, Nixon’s successors have always had a swinging perception of China, whether clear or muddy, straight or crooked, and floating. As a result, Sino-American ties have been bumpy along the road. Because some Americans misunderstood the subject of China studies, the ensuing misconceptions appear to be a black cloud in the sky of Sino-US relations; when the dark cloud appears, the US and China will lose ground in their interactions with China.

The current challenges in Sino-US relations are likewise similar: there are both black clouds of the so-called “China threat theory” and aggressive actions continually unleashed by the US administration, which throws a shadow on US policy toward China while also casting a shade on the US itself. There are several impediments to growth. In truth, the different “evidences” of the so-called “China Threat Theory” are not difficult to understand and do not need profound knowledge or secrets that cannot be made public.

Viewing China’s peaceful development trend honestly and logically is not an insurmountable challenge for Americans. Nixon and Kissinger of the United States strove hard 50 years ago not to “hide from the clouds.” Today, the US likewise has no need to invent a slew of fictitious “reasons for China threats” in order to keep Sino-US ties from improving!

Otherwise, I’m not sure whether future Americans will be able to answer the question, “Who lost China?” However, as the adage goes, “the house leaks and rains,” referring to the ongoing epidemic of the new crown epidemic, which prevents direct face-to-face connection. The hurdles, which include psychological and emotional barriers, have exacerbated the difficulty of removing these black clouds.

Expressions like “I am in you, and you are in me,” “Everything is thriving, and everything is lost,” and “Global Village” are also taught from American scholars, and they reflect true developments in Sino-US ties. As far as I am aware, virtually few researchers over the age of 40 in American academic circles have not been inspired by the thesis of “interdependence.” As a result, they recognize the importance of interdependence and will not turn a blind eye to the breadth and depth of dependency between China and the United States today.

The United States and China’s interdependence today is extensive, multi-layered, and multi-faceted. It is a network structure system that is vertically and horizontally interwoven and coexists peacefully. What exactly is “hehe”? It is designed to meet the demands of both China and the United States. If the difficulties of matching and matching between the two nations via peace and collaboration is unique in history, then the matching and matching accomplished between the two countries after a half-century of hard effort is also exceptional. There are few countries in the world that can be compared to it, and none that can replace it.

To put it another way, the compatibility that China and the US require may be achieved through hard work. Even though China and the United States do not share the same destiny or synergy for the time being, the American people’s everyday lives are nearly inextricably linked to China. Based on this, I’ve understood the truth: the mutual relationship’s ability to shift from danger to safety is due to their interdependence, and no one can abandon others. This is the heart and soul of Sino-American ties. There is no justification for anybody to overlook this basic due to the disagreement between them, let alone dig out the roots and harm the truth!

There is no obstacle that cannot be overcome in order for Sino-US relations to develop, because there are always more solutions than challenges. The author has firsthand knowledge of the development process that occurred after the “hard ice” of Sino-US ties was cracked. I’ve witnessed both the flowering spring and the dismal winter that appears to be on its way. Even if “apes on both sides of the strait couldn’t cry,” they can nonetheless show up. Situation in which “the light boat has crossed ten thousand huge mountains.” Following the upheaval of the late 1980s, Sino-US relations were practically intolerable, and they persisted until the end of 1991, with little indications of improvement.

There is no obstacle that cannot be overcome in order for Sino-US relations to develop, because there are always more solutions than challenges. Following the upheaval of the late 1980s, Sino-US relations were practically intolerable, and they persisted until the end of 1991, with little indications of improvement. On January 24, 1992, excellent news came out of Chinese diplomacy in the midst of such a “severe winter”: Following a brief conversation with Israel, they agreed to formally establish diplomatic ties without any impediments, based on the strong affinity forged in the history of the Chinese and Jewish peoples. The two countries’ long-awaited wish. The positive news of the creation of diplomatic relations between China and Israel has taken the Jewish world by surprise and has had a significant impact on the inclination of the American media to report on China issues.

There are many Chinese in the United States, and most Chinese expect Sino-US ties to strengthen. Only until Sino-American ties improve will Chinese people have a place and be appreciated in the United States. Foreigners will also consider a person’s “birth background,” which is natural and nothing strange; if the “birth background” is favorable, they will be “admired.” China is also the “birthplace” of Chinese people in the United States. Chinese in the United States have put in a lot of effort and made significant contributions to the establishment of stable and seamless Sino-US ties. This tradition is not only alive and well, but also thriving.

There are a considerable number of Americans who rely on China-related employment, business, and investment, whether in China or the United States. Only until Sino-US ties improve will they be able to focus only on China-related professions, business, and investment, and they despise “McCarthyism.” As a result, they anticipate that Sino-US ties will improve, which is unavoidable.

For example, in July 1990, at the invitation of the “National Committee on U.S.-China Relations,” then-Shanghai Mayor Zhu Rongji led a delegation of Chinese mayors to the United States, aiming to dispel U.S. government and opposition to China’s reform and opening up through the development of Pudong.

The Sino-US relationship, which was harmed by the late 1980s instability, also sought an agreement from the US Congress to prolong China’s most-favored-nation status. According to Zhu Rongji’s suggestion, Shanghai organized a delegation of scholars led by Ding Xinghao from the Shanghai Institute of International Studies, Hong Wenda from the Department of Economics at Fudan University, Yao Tinggang from the Shanghai Academy of Social Sciences, and Yao Tinggang from the Department of International Politics at Fudan University. Shanghai Institute of Foreign Trade’s Zhou Dunren and Zhou Hanmin are made up of five persons.

These five people’s round-trip travel expenditures were not covered at the time. When the National Committee on US-China Relations learned about the situation, they quickly said that they would offer it in its entirety. American friends are very ruthless! At the time, Sino-US ties were exceedingly tense, but China had made many American friends via bilateral exchanges with the US, as well as diplomatic assets for the growth of Sino-US relations. Trusted friends will provide genuine assistance in times of need.

As a result, the Chinese mayor delegation led by Zhu Rongji’s tour to the United States outperformed expectations. Friends such as the “National Committee on US-China Relations” are not only there, but numerous. This decision should be practical and in line with objective reality. Furthermore, the US still has a vast number of international challenges that cannot be managed by one country alone and necessitate China’s assistance. There are still many shared interests between China and the United States that must be pursued in order for individual interests to be realized. There are several elements that benefit both China and the United States. The challenge is how to make the most of these advantageous circumstances. The overarching theme is how to persuade Americans to view China’s peaceful growth trend objectively and rationally.

In sum, their concept of the character of the United States has been constantly painted and has not been in place for a long time. The examination of the character of the United States, on the other hand, differs from the policy of international affairs in the United States. The primary purpose of US strategy is to enable the US to comprehend China objectively and logically. There is still a lot of opportunity for improvement.

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The impact of Biden’s policies on China

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Official White House Photo by Lawrence Jackson

The main Indications of US policy towards China have begun to become clear, and this policy reflects an American approach based on dialogue, without abandoning the militancy adopted by the administration of former President “Donald Trump”. In this context, the Egyptian researcher will analyze what (the shift in the language of China’s political discourse towards the policy of the new US administration and its impact on the Middle East, and the corresponding Chinese policy determinants). On the other hand, the scholar will shed light on the position of the Middle East countries, especially in the Gulf region, with the intensification of competition between the two major powers.

  The moves of US President Joe Biden’s administration, since he formally took office on January 2021, have focused on building a policy toward China based on alliances. This policy includes:

Trying to coordinate with Washington’s allies to confront China’s foreign policies.

Re-enhancing the influence of the United States in international organizations.

This trend also shows that the determinants of the US administration’s policy towards China are not exclusively related to Washington’s management of bilateral relations with Beijing, as much as they are affected by the management of its relations with other countries as well.

The “Biden administration” stems from a position of weakness in the East Asian region following the isolationist policies of the previous “Trump’s administration”, and the impact of the Corona pandemic.

Chinese officials and analysts have pointed to a crisis (the failure of the Trump administration’s pressure on Japan and South Korea to increase their defense spending).

On the other hand, China’s success in persuading most countries in the region to join the (Regional Comprehensive Economic Agreement) was the biggest blow to American influence.

In mid-March 2021, a “Quad Summit” was held, which brought together the leaders of (the United States, Japan, India, and Australia), and focused on China. The summit showed that “Biden” wanted to expand the scope of cooperation among the group’s members, to include elements of “soft power”, in addition to its military dimension.

We also note the tours of the US Secretary of State, “Anthony Blinken” and the US Defense Minister “Lloyd Austin” to Japan and South Korea as well to coordinate US efforts against China.

Washington has announced the holding of a high-level meeting in Alaska between Secretary of State “Anthony Blinken” and National Security Adviser “Jack Sullivan” on the one hand, and Chairman of the Foreign Relations Committee of the Communist Party of China “Yang Jiechi” and Foreign Minister “Wang Yi” on the other hand.

On the bilateral level with China, we note that (the Biden administration has adopted a parallel dimension based on a balance between diplomacy in issues on which the two parties agree, and deterrence in controversial files).  The US strategic objective of this approach is to adopt dialogue, but to a lesser degree than the administration of former President “Barack Obama”, in conjunction with maintaining the policy of confrontation, but to a lesser degree than the Trum’s administration.

One of the most important contentious issues that is expected to occupy the agenda of the two countries, and which is witnessing the intensification of competition between them, is “technological competition”. Chinese Professor (Wang Da), Deputy Director of the American Institute at Jilin University in China, analyzes the course of this technological competition between Washington and Beijing, saying:

The United States will continue to adopt a hard policy towards China in certain areas, such as 5G networks, quantum computing and artificial intelligence, but it will reduce the policy of “aggressive detachment in other less sensitive areas”.

We note here the Biden campaign pledge during the US election battle to allocate $300 billion for innovation, and this will be the main driver behind US policy, in parallel with (Washington’s endeavor to undermine China’s capabilities in the field of science and technology).

On the (political level), the Biden administration seems to have no options but to be tough on China. One of the most important strategic goals of President Biden is to end the internal political division.  It is understood from this that adopting a different approach from the Trump administration towards China may deepen the division further, and this complex position for the American administration means that at a time when “the files that might produce consensus between Democrats and Republicans are almost absent”. Here, we can see that the “Chinese threat” appears to be the most important consensual issue on the American political scene at the moment.

American analyzes indicate that between a quarter to a third of men in the United States may lose their jobs by the middle of this century. In addition, the expansion of globalization and the accelerating digitization process caused great pressure on the working class in some crucial states, which are called (Rust Belt states), in which Biden achieved a hard or hard victory in the last presidential elections in the face of his opponent, “Trump”. These are the states of (Pennsylvania, Michigan, and Wisconsin), which means that this class will determine the outcome of the US presidential election again in 2024.

Based on this complex political equation towards the US tightening policy against China, the Biden administration announced its intention to tighten trade policy with China, with the “Joe Biden administration”, stressing the need to “reconsider the agreement of the first phase of trade negotiations with China and not to rush to lift trade sanctions against it”.

On the (security level), the White House issued guidelines for all US agencies in the month of March 2021, we note that it “mentioned China’s security risk more than 20 times”.

President “Biden” pledged the importance of (strengthening the US military presence in the Indo-Pacific region), and obtaining the support of Japan, South Korea, Taiwan and Australia in the face of “China’s hostile practices in the Northeast Asia and the South China Sea”, in addition to the support of NATO,  As essential components of the American alliance against Chinese policies in that region, according to the new American vision.

The US security document also pledged the importance of “strengthening the US partnership with India, Singapore, the Philippines, Vietnam and the rest of ASEAN countries” to undermine and besiege China.

In order to undermine and besiege Chinese influence, Washington announced in March 2021 several plans to build (a network of guided and high-precision missiles along the so-called “first island chain”, which constitutes the first strategic defense line for China), and includes mainly “Taiwan and the Philippines”, and as well as several islands disputed between Japan and China.

The Biden’s administration’s tendency to double (media and diplomatic pressures on China in connection with the human rights file in Hong Kong, Xinjiang and Tibet, and with regard to the international investigation of the source of the spread of the Corona virus, as well as the file of freedom of navigation in the South China Sea) was also clearly shown.

On the other hand, there are files around which the views of China and the United States of America converge together, according to the same American vision, and among the files of: (controlling nuclear arms, climate change, and combating epidemics), which are the foundations for points of cooperation between the two sides, as it focused  Biden made his first call with Chinese President “Xi Jinping” in February 2021.

But the main dilemma that will face the “Biden administration” lies in (the different visions of most Southeast Asian countries for the security approach to confront China from the American vision itself), and the inability of the Asian countries allied to Washington to withstand Washington’s strategic pressures to confront Chinese influence, which is mainly supported by policy interactions.  interior in the United States. These mainly Asian countries share a common destiny with China politically, economically, geographically and historically.  Moreover, most do not view US-China relations as a “zero-sum” as in Washington.

  Here, we note from the foregoing, the contradiction of the policies and vision of the American administration with its allies regarding China, and therefore, the United States will have to (invent new formulations in its dealings with each country separately according to its interests), and this is the most important obstacle in Washington’s relations with its allies in dealing with China.

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