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.
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;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.
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.
“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.”
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.
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.
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
[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.
[xxi] See Corwin, supra, at 7.
[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.
[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.
[xliv] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.
[xlv] Id, pp. 65 – 68.
[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.
[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.
[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.
[lviii] See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
[lx] See Sophocles, ANTIGONE, supra.
[lxi] See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
[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.
Donald Trump’s War on Truth and Justice: Crude, Unprecedented and Still Accelerating
“To them, I said, the truth would be literally nothing but the shadows of the images.”–Plato, The Republic
For US President Donald J. Trump, policy making by imposed chaos has become normal. Again and again, we see that this president’s decisions are founded upon manipulation and contrivance; inevitably, his choices(both conspicuous and inconspicuous) injure American interests and ideals….and at the same time. Should they be left insufficiently opposed, such injuries will impair the most rudimentary expectations of American national security and international justice.
There is more. These markedly grave impairments continue on several intersecting (and sometimes synergistic) levels. Most ominously, there have been satellite images confirming that North Korea is moving ahead aggressively with its ballistic missile program. As corollary, we may now also learn, prima facie, that Mr. Trump’s earlier reassurances about “peace” with North Korea were not merely silly fabrications, but also deliberate falsifications. Prospectively, there are corresponding nuclear consequences for America’s close allies in South Korea and Japan, some of them potentially existential.
“We fellin love,” said Trump after first meeting Kim Jung Un in Singapore a few years back. But by the most basic standards of prudent policy-making, any such alleged “romance” must remain beside the point. In any event, as the recent and recurrent missile tests by Pyongyang reveal, Trump’s declared love is glaringly unrequited.
Credo quia absurdum, warned the ancient philosophers. “I believe because it is absurd.” With great deliberateness, systematically, this president studiously avoids any knowledge-based judgments. Another recent example is Trump’s blaming of California “mismanagement” for the raging wildfires in that state (“They should have raked….”). The president also abrogated this country’s legal obligations under the INF treaty, a destabilizing termination that has already shattered codified American promises at international and domestic legal levels, This is apt to be followed by US rejection of New Start treaty obligations.
Of course, even before launching this particular presidential assault on legal order, international law and national law, Trump formally withdrew the United States from the July 2015 Iran deal (the JCPOA), a multilateral agreement that the UN’s IAEA had several-times reaffirmed was being respected by Tehran.
There are, to be sure, all-too-many additional examples of US President Trump undermining America’s indispensable legal and moral obligations. All of these examples, some of them plausibly irrational,reflect the unsupportable core assumption that “attitude, not preparation” is what matters in diplomatic negotiations. For some unimaginable reason, moreover, Jared and Ivanka (the president’s “hidden geniuses” according to Trump’s previous UN ambassador) have not yet been able to fashion an impressively coherent plan to save the Middle East.
What a surprise. Naturally, we are routinely advised, the failure must be someone else’s fault. Perhaps Hillary. Using Trump “logic,” that conclusion would seem to be a frequent and generally applicable remedy.
There is more. A self-declared “very stable genius,” US President Donald Trump still wages a bewildering war against his own intelligence agencies and national legal institutions. What remains detached from any competent national assessment is Trump’s underlying abhorrence of intellect and learning. Should anyone doubt this perilous loathing, one need just “tune in” to the latest presidential “rally.”
“I love the poorly educated,” intones Trump to his assembled acolytes.
“Intellect rots the brain,” said Third Reich Propaganda Minister Joseph Goebbels.
Not much erudition here; just a cultivated incoherence.
Donald Trump is no scholar. To be fair, no one should ever have expected anything else. But this president is notoriously weak on most vital matters of law and justice, so much so that he believes manipulating US foreign aid to injure his domestic political foes is altogether reasonable and permissible, whatever the deleterious effects upon another state’s most vulnerable populations. A conspicuous case in point is the extortion-like leverage seemingly exerted against an already-fragile Ukraine.
Unsurprisingly, this particular Trump dereliction was intended to benefit not only the American president himself, but also his regularly and strangely venerated Cold War II “rival,” Vladimir Putin.
Though not generally known, international law remains an integral part of the law of the United States. Inter alia, among other authoritative sources, it says this explicitly in the Constitution, the very same document that Mr. Trump’s supporters are fond of citing in their recurrent reverential references to “gun rights.” Various express codifications can be discovered at Article 6 (the “Supremacy Clause”) and at certain corresponding U.S. Supreme Court decisions (see particularly the Paquete Habana, 1900 and Tel-Oren vs. Libyan Arab Republic, 1981).
There is more. Article 6 of the US Constitution clarifies that “…all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land….” The United States is party to the 1951 Refugee Convention, which contains (at Article 33) the basic principle of non-refoulement: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality membership of a particular social group or political opinion.”
Nonetheless, from the beginning, under Donald Trump’s fitfully-released and often self-contradictory executive orders, impermissible expulsions and returns have become “official” policies of the United States. Earlier, “ground-zero” for such evident presidential manipulations had been the refugee “caravan” and its alleged “invasion.” At that time, Trump not only ignored Russian-Iranian-Syrian war crimes, but openly praised the principal architect of these derelictions, Vladimir Putin.
There is more. Most recently, against the wishes of his most senior military, Trump issued pardons for certain US soldiers accused of egregious war crimes. Among other derelictions, these pardons undermined the peremptory expectations of the laws of war or humanitarian international law. By definition, therefore, they also represented stark violations of duly “incorporated” US law.
Still, despite his serious violations of US and international law, Trump is not the genuinely underlying “pathology.” Rather, his law and government-violating presidency is“merely” the symptom of a much wider and more deeply systemic disorder. This disorder is an insistently anti-intellectual American society, one that frowns upon virtually any original expressions of logical explanation or independent thought.
When the infant children of desperate refugees were being housed in cages, this president, tanned and bemused, journeyed to Florida or New Jersey foryet another round of golf. Significantly, though generally unknown to Americans, the due process clauses of the US Constitution protect all “persons,” and not just “citizens.” Jurisprudentially, this authoritative scope of competence – one drawn from fully invariant Natural Law or Higher Law bases of the American Republic – is “beyond legal question.”
In life and law, truth is exculpatory. Derivatively, we are not witnessing a normal and law-abiding American presidency. Accordingly, we must now finally inquire:”Is this an excusable and remediable legal deformation, or is it rather an execrable dress rehearsal for astill-widening chaos”?
It’s high time for candor. What Donald Trump values most in both national and international politics is chaos. A deeply troubling affection, it is impossible to reconcile such curious affections with even the most rudimentary legal expectations of US government or law.
At very basic levels of explanation, Trump’s feverishly loyal supporters, who still number in the tens of millions, yearn for the tangible warmth of “belonging, ” of being part of a perpetually shrill and shrieking crowd, of enjoying the numbingly false pleasures bestowed by deceptively simplistic explanations. Always, after all, complexity is anathema to those who loathe serious thought. It is excruciatingly daunting for those who would reject intelligence and intellect in virtually any form, whether by offering loud belligerent chants or more cautiously, softly, almost sotto voce.
“Intellect rots the brain,” cautioned Third Reich Propaganda Minister Joseph Goebbels at the 1935 Nuremberg rallies.
“I love the poorly educated,” offered candidate Donald Trump during the 2016 US presidential campaign.
These crude sentiments are not altogether dissimilar. Palpably, though many years apart, they still resonate warmly with each other, across the years. Inter alia, both display a species of “truth” that corrupts absolutely any hint of history or science.
This truth is “literally nothing but the
shadows of images.”
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.
 On these levels, the “whole” of such Trump-induced impairments will exceed the simple sum of its “parts.” In other words, the cumulative impact of these presidential impairments will actually be far worse than what first meets the eye.
 For authoritative early accounts by this author of nuclear war effects, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986). Most recently, by Professor Beres, see: Surviving Amid Chaos: Israel’s Nuclear Strategy (New York, Rowman & Littlefield, 2016; 2nd ed. 2018).
 See Louis René Beres, “Nuclear Treaty Abrogation Imperils Global Security,” Yale Global Online November 1, 2018 https://yaleglobal.yale.edu/content/nuclear-treaty-abrogation-imperils-global-security
Recalling the 20th-century German philosopher, Karl Jaspers: “The rational is not thinkable without its other, the non-rational, and it never appears in reality without it.” This insight can be found in Jaspers’ “Historical Reflections” on Kierkegaard and Nietzsche.
 The Middle East is not the only task placed upon Jared Kushner by his father-in-law. He has also been given a lead role in fashioning US trade policy, reorganizing thegovernment of the United States, reforming the entire American criminal justice system and overseeing construction of the border wall.
Acknowledging the emergence of “Cold War II” means expecting the world system to become increasingly bipolar. For early conceptual writings by this author on the global security implications of any such expanding bipolarity, see: Louis René Beres, “Bipolarity, Multipolarity, and the Reliability of Alliance Commitments,” Western Political Quarterly, Vol. 25, No.4., December 1972, pp. 702-710; Louis René Beres, “Bipolarity, Multipolarity, and the Tragedy of the Commons,” Western Political Quarterly, Vol. 26, No.4., December 1973, pp, 649-658; and Louis René Beres, “Guerillas, Terrorists, and Polarity: New Structural Models of World Politics,” Western Political Quarterly, Vol. 27, No.4., December 1974, pp. 624-636.
Along these lines, Sigmund Freud had maintained a general antipathy to all things American. In essence, he most objected, according to Bruno Bettelheim, to this country’s “shallow optimism,” and its seemingly corollary commitment to a disturbingly crude form of materialism. America, thought Freud, was very evidently “lacking in soul.” See: Bruno Bettelheim, Freud and Man’s Soul (New York: Alfred A. Knopf, 1983), especially Chapter X.
 See pertinent essay by this writer at The Daily Princetonian:http://www.dailyprincetonian.com/article/2018/06/a-core-challenge-of-higher-education
 The founding fathers of the United States – believing firmly in natural law and natural rights – held that the human rights expectations of the Declaration of Independence must apply to all peoples, for all time, and can never be properly reserved solely to Americans.
 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. In the language of pertinent Article 53 of the Vienna Convention on the Law of Treaties (1969: “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.”
 Although composed in the seventeenth century, Thomas Hobbes’ Leviathan still offers an illuminating vision of chaos in world politics. Says the English philosopher in Chapter XIII, “Of the Natural Condition of Mankind, as concerning their Felicity, and Misery:” During chaos, a condition which Hobbes identifies as a “time of War,” it is a time “…where every man is Enemy to every man… and where the life of man is solitary, poor, nasty, brutish, and short.” At the time of writing, Hobbes believed that the condition of “nature” in world politics was less chaotic than that same condition existing among individual human beings -because of what he called the “dreadful equality” of individual men in nature being able to kill others – but this once-relevant differentiation has effectively disappeared with the global spread of nuclear weapons.
 “Reason,” warns the philosopher Karl Jaspers, “is confronted again and again with the fact of a mass of believers who have lost all ability to listen, who can absorb no logical argument, and who hold unshakably fast to the Absurd….” (See: Reason and Anti-Reason in Our Time, Archon Books, 1971, p. 78).
Bolivia: Post-Coup Update
With every passing day, it becomes clearer that the military coup in Bolivia on November 10th was masterminded in Washington DC. This reality will create yet a new difficulty in relations between the U.S. regime and Mexico to its direct south, because the Mexican Government, under progressive President Lopez Obrador, took the courageous and very meaningful step of providing refuge to the U.S.-couped Bolivian President Evo Morales and therefore posed overtly a resistance to the U.S. dictatorship.
Unlike the U.S. itself, which has abandoned the substance of democracy while adhering to its fascist Supreme Court’s interpretations (distortions) of the original intent of the democratic America’s Founding Fathers in their U.S. Constitution, Bolivia’s imposed regime isn’t even nominally legitimate in any democratic sense, because it has abandoned that country’s Constitution, ever since it grabbed power there.
One of the first indications that this was another U.S. coup was that on November 10th, the New York Times, which along with the Washington Post is one of the regime’s two main mouthpieces, refused to call it a “coup” at all, though it obviously was. Headlining on November 10th with the anodyne “Bolivian Leader Evo Morales Steps Down”, they lied and alleged that “Mr. Morales was once widely popular” — as if there were any objective measures, such as polls, which indicated that he no longer was. Their concept of ‘democracy’ was like that of fascists everywhere: violent mob actions against a democratically elected Government. “Angry mobs attacked election buildings around the country, setting some on fire.” Far-right mobs are ‘democracy to ‘journalists’ such as at the New York Times.
The next day, November 11th, that fascist ‘news’-paper headlined an editorial “Evo Morales Is Gone. Bolivia’s Problems Aren’t.” Here is how they expressed their contempt for democracy: “When a leader resorts to brazenly abusing the power and institutions put in his care by the electorate, as President Evo Morales did in Bolivia, it is he who sheds his legitimacy, and forcing him out often becomes the only remaining option. That is what the Bolivians have done.” ‘Bolivians’ — meaning there that extreme-rightist minority of Bolivia’s electorate. The NYT even had the gall to say contemptuously: “Predictably, Mr. Morales’s left-wing allies across Latin America, including President Nicolás Maduro of Venezuela, President-elect Alberto Fernández of Argentina and President Miguel Díaz-Canel of Cuba, joined by the British Labour leader Jeremy Corbyn, cried ‘coup’.”
Britain’s BBC, on November 11th, was considerably more circumspect in their anti-democratic propaganda: for example, in this video, at 13:00, the BBC asks “Why are so many of the people out there on the streets now then do you think
[demonstrating against Morales]
?” and the respondent didn’t say that this is the way practically every CIA coup is done. So, the desired implication was left with gullible viewers, that this was an expression of a democracy instead of the expression of a fascist mob.
It was left to governments which are resisting U.S. rule to express more honestly, as the Turkish Government’s more honest propaganda-organ, the newspaper Yeni Safak, did finally on November 17th, “Bolivia’s Morales was overthrown by a Western coup just like Iran’s Mosaddeg”. Their columnist Abdullah Muradoğlu wrote:
There are indications that the U.S. was involved in the ousting of Bolivia’s first indigenous president, Evo Morales, in a military coup. Secret talks between American senators and Morales’ opponents were brought up before the elections on Oct. 20. The talks, which were leaked to the public, discussed action plans to destabilize Bolivia if Morales won the elections. It was stated that the Evangelical Church would support the coup attempt. The fact that Brazilian President Jair Bolsonaro, known as “Tropical Trump”, U.S. Vice President Mike Pence and U.S. Secretary of State Mike Pompeo are passionate Evangelicals, points to the ideological link to the Evangelical architects of the Bolivian coup. …
Bolivia has abundant resources of tin, copper, silver, gold, tungsten, petroleum and uranium, as well as large quantities of lithium. Lithium is a strategic mine for space technology. Morales became the target of a pro-U.S. military coup, and policies aimed at allocating the country’s resources to the poor rather than a small group played an important role in his demise. …
But it wasn’t only foreign news-media but also a very few honest alternative-news media which were reporting the realities. For example, on November 11th, The Gray Zone headlined “Bolivia coup led by Christian fascist paramilitary leader and millionaire – with foreign support”. The next day, on November 12th, Moon of Alabama’s anonymous blogger bannered “Lessons To Learn From The Coup In Bolivia” and he summarized the popular democratically elected and re-elected overthrown leader Evo Morales’s enormously successful record of leadership there, such as:
During his twelve years in office Evo Morales achieved quite a lot of good things:
2006 13.0%, 2018 2.4%
2006 9.2%, 2018 4.1%
Moderate poverty rates
2006 60.6%, 2018 34.6%
Extreme poverty rates
2006 38.2%, 2018 15.2%
It’s no wonder, then, that Morales is so popular in Bolivia.
Then, further about the fascist character of the U.S.-imposed regime, Mint Press News headlined on November 18th, “Media Silent as Bolivia’s New Right-Wing Gov’t Massacres Indigenous Protesters”.
On November 19th, Peoples Dispatch bannered “Hatred of the Indian. By Álvaro García Linera”, and presented a statement by Linera, who was Morales’s Bolivian Vice President. He opened:
Almost as a nighttime fog, hatred rapidly traverses the neighborhoods of the traditional urban middle-class of Bolivia. Their eyes fill with anger. They do not yell, they spit. They do not raise demands, they impose. Their chants are not of hope of brotherhood. They are of disdain and discrimination against the Indians. They hop on their motorcycles, get into their trucks, gather in their fraternities of private universities, and they go out to hunt the rebellious Indians that dared to take power from them.
In the case of Santa Cruz, they organize motorized hordes with sticks in hand to punish the Indians, those that they call ‘collas’, who live in peripheral neighborhoods and in the markets. They chant “the collas must be killed,” and if on the way, they come across a woman wearing a pollera [traditional skirt worn by Indigenous and mestizo women] they hit her, threaten her and demand that she leave their territory. In Cochabamba, they organize convoys to impose their racial supremacy in the southern zone, where the underprivileged classes live, and charge – as if it were a were a cavalry contingent – at thousands of defenseless peasant women that march asking for peace. They carry baseball bats, chains, gas grenades. Some carry firearms. …
On November 26th, the Libya 360 blog headlined “Bolivia: they are killing us, comrades!” and reported:
We are receiving audios all the time, from different parts of Bolivia: Cochabamba, El Alto, Senkata, La Paz… They bring desperate cries from women, from communities that resist with dignity, under the murderous bullets of the military, police, and fascist groups armed by the oligarchies with the support of Trump, Macri, and Bolsonaro. They also bring voices that denounce, voices that analyze, voices that organize, voices that are in resistance. There are weeping voices that are remade in slogans. The united peoples will never be defeated!
The racist, fascist, patriarchal, colonial, capitalist coup d’etat seeks to put an end to all these voices, silence them, erase them, make them inaudible. The communicational fence seeks to crush and isolate the words of the people. The conservative, capitalist restoration, goes for lithium, goes for the jungle, goes for bad examples.
The voices continue to arrive. New spaces of communication are generated. The social and family networks, the community radio stations, the home videos made from cell phones are functioning by the thousands. It is heartbreaking to hear bullets. To see their journey through the flesh, invading the bodies that rise from all humiliations. It generates anger, impotence, indignation, rage. …
On the same day, that same blog bannered “The People Will Not Allow the Coup in Bolivia, says Venezuelan Ambassador”. This opened:
One of the first ‘promises’ made by the self-proclaimed, de-facto government of opposition senator Jeanine Áñez was to “hunt down” ex-minister Juan Ramón Quintana, Raúl García Linera – brother of vice-president Álvaro García Linera -, as well as the Cuban and Venezuelan people that live in Bolivia.
The threat was publicly declared by the interior minister Arturo Murillo, designated by Áñez.
Later on, the communications minister of the de facto government, Roxana Lizárraga, accused Cuban and Venezuelan diplomats of being responsible for the violence unleashed in the country.
The statements came after an attack on the Venezuelan diplomatic office in La Paz on November 11. Armed paramilitaries surrounded the embassy with explosives and threatened to invade the building.
However, the aggression did not begin with the coup. According to Crisbeylee González, who served as the Venezuelan ambassador in Bolivia for more than 10 years, since 2008, the embassy has suffered threats from the organizations in opposition to Evo Morales and Álvaro García Linera.
During the days of tension, Crisbeylee, who is also a personal friend of Morales, decided to protect her team and she returned to her country.
On November 17, the Venezuelan diplomatic staff, made up of 13 functionaries and their family members, flew with the Venezuelan state company Conviasa from La Paz to Caracas.
Upon returning to her country, the ambassador spoke to Brasil de Fato and denounced the terror she suffered in the last couple of days.
Brasil de Fato: How did you all take the news that you would have to leave the country? Was there any hostility before the coup?
Crisbeylee González: For a while now, the opposition has talked about a “Chavista bunker” referring to the Venezuelan embassy, where we would supposedly be “ideologically orienting” the Bolivian people’s movements and youth. They even talked about us supposedly exerting pressure on Evo so that he would not abandon the socialist, Bolivarian proposal.
There were always certain times when the xenophobia increased, especially during elections. Every time that there were elections or a coup attempt, the principal target is always of course president Evo Morales but right after that, it’s the Venezuelan embassy. The diplomatic mission has always been an element that must be combated.
Since 2012 when there was a coup attempt by the police, they began to say that our embassy carried out military training with the Bolivians. A very similar discourse to what was created in Chile against the Cubans during the rule of Salvador Allende.
And with this, they were able to create a strong expression of xenophobia within the Bolivian middle classes against Venezuelans. The media also helped to create this adverse discourse against Venezuelans.
In these past couple of days [since the coup], one of the first things that they did was to say that the Venezuelans had to leave and that they were going to attack the Venezuelans. Before the elections on October 20, they already talked about attacking the embassy. …
The next day, on November 27th, they headlined “The U.S. Launches Itself in the Most Violent Way Imaginable to Definitively Seize Bolivia”. They interviewed Argentine sociologist Atilio Boron, one of the most internationally renowned political analysts today, so that in just three questions he can give us his vision of the crisis Bolivia is going through.
How would you characterize the coup d’état in Bolivia?
Without a doubt, the coup d’état in Bolivia is part of the tradition of the old military coups sponsored by the United States since the end of World War II. However, this practice dates back even further, as the history books show us. That means that the soft coup that was applied against Manuel Zelaya in Honduras, Lugo in Paraguay and Dilma Rousseff in Brazil, has been abandoned and the old formulas have returned. In Bolivia, the old formulas were applied, because in reality there was no possible propagandistic basis for the coup. There was no fraud in Bolivia and therefore the OAS avoided using that expression, instead making euphemistic recommendations. Furthermore, recent studies from the United States convincingly prove that such fraud did not exist. The University of Michigan study (which is the most important center for electoral studies) confirms this. However, the coup plan was not going to stop in the face of these details. They wanted to get Evo out and take revenge. It was a very clear lesson against those Indians who, as they did in 1780, revolted against the Spanish viceroyalty. Somehow what is happening now is a replay of Túpac Katari’s deed. The scenarios have changed and imperialism is different, but the essence is the same. And now, as yesterday, it is being repressed with unprecedented ferocity. …
On November 28th, Peoples Dispatch and Libya 360 simultaneously headlined “Bolivia: What Comes After the Coup?” and opened:
It has been over two weeks since the coup d’état which forced the resignation and exile of President Evo Morales and Vice-president Álvaro García Linera. Since then, thousands of working-class and Indigenous Bolivians have been resisting on the streets the coup and the illegitimate government of Jeanine Áñez. They have been met with extreme violence from the Armed Forces and the National Police, over 30 have been killed, hundreds injured and hundreds have been arrested.
On Monday night, a new agreement was announced reached between the de facto government of Áñez and the legislators from the Movement Towards Socialism (MAS) to hold elections in the country in the next 3-4 months.
Peoples Dispatch spoke to Marco Teruggi, an Argentine sociologist and journalist who spent several weeks in Bolivia before and after elections were held in order to understand the agreement reached on elections and the state of resistance in the country.
Peoples Dispatch: Starting with the most recent, what do you think about the agreement that MAS made with the de facto government of Jeanine Áñez? Did they have another option? Was there enough force on the streets and in the Assembly to achieve anything else?
Marco Teruggi: The first thing to keep in mind is that in the design of the coup d’état, from the beginning, the possibility of an electoral solution was always contemplated in order to gain legitimacy.
If you had to arrange it in steps, there is the first step which is the overthrow, a second step which is the creation of a de facto government, and all of this accompanied by persecution, repression and massacres. The third moment is the call for elections and the fourth moment is when the elections themselves happen.
This was always proposed in the basic design, it was never about an old-style coup d’état where a de-facto government is installed for an undetermined amount of time, but precisely part of its presentation was to show itself as a democratic process, recognized internationally, under the condition that later they would go to elections.
It was always expected, the question was in what moment, with what conditions, both for the coup supporters and for those who are confronting it. In this sense, this issue was being discussed in the Assembly, where MAS has a majority, and as they had been announcing, they gave the OK for an agreement, in law, to call for elections, wherein the results of the elections of October 20 are also annulled.
I think that just as it was clear that the coup strategy counted with an electoral resolution to legitimize itself, it also was clear early on that the strategy of the MAS legislators was to hold these elections in the most favorable conditions possible. Basically that MAS could present itself in the elections, which it achieved, and with guarantees for Evo, not to participate, but to prevent political-juridical persecution. And also the retreat of the soldiers, for them to return to their barracks, and that the decree which exempts them from penal responsibility in operations of “re-establishing order” is withdrawn.
As such, it is not surprising that MAS has said yes to the elections because it was not going to be possible to remove Áñez through street pressure, even though the actions on the streets conditioned the initial strategy of the coup. It is very important to keep this in mind because otherwise, one could think that MAS proposed a change of tactics, of strategy. But no, it was always the electoral solution, and either way, the streets were an important component to accelerate this process on both ends. …
So, in short: rigged ‘elections’ will be held, in which Evo Morales is to be excluded, and in which there will be no repercussions against the U.S.-stooge-regime participants if their side fails to win those s’elections’. The Bolivian people won’t have any legal right to hang the coupsters. The U.S. regime will see to that.
Author’s note: first posted at Citizen Truth
Fragmentation or Unity: A Core US Foreign Policy Choice
“In a dark time, the eye begins to see.”-Theodore Roethke (American poet)
In essence, Donald Trump’s ideas about “America First” represent a retrograde vote for expanding global fragmentation. Whatever decisional uncertainties we may have concerning any specifically preferred course of US foreign policy direction, one thing is certain. Prima facie, these crude ideas can augur only disunity and an endless future of belligerent nationalism and catastrophic war.
Accordingly, pertinent US national policy imperatives should not be difficult to decipher. Now, instead of “America First,” this country’s rational posture should firmly reject any stubborn adherence to long-failed ideological orientations. Though generally difficult to understand, what at first may seem pragmatic in foreign policy decision making is only a prescription for despair. To wit, any nation that seeks to maximize its own well-being at the intentional expense of others – a zero-sum view – will actually be acting against its own security interests.
It’s about interpenetrations. In world politics, everything is interrelated. Among other things, no single country’s meaningful success can typically be achieved at the sacrificial expense of other countries. Moreover, no such presumptive success is sustainable if the world’s myriad “others” must thereby expect a more violent and explosive future.
Everything is interrelated, as system.
Now, certain absolutely ore questions must give direction to relevant strategic dialectic. More precisely, we must inquire, what should we realistically expect from Donald Trump’s conspicuous contempt for sensible notions of widening global unity?
Here, history is instructive.
Here, on earth, the basic story has never really been any different.
Here, the tribe, in one form or another, has long undermined all indispensable opportunities for authentic world order.
It is this latest expression of a corrosive national tribalism that is currently being championed by “America First.” Ironically, when all cumulative policy impacts are taken into careful account, America First is revealed as virulently anti-patriotic. Starkly. What else could reasonably be concluded about a national policy that injures one’s own country and various others at the very same time?
Plainly, America First represents an expression and posture that is dangerously misconceived and prospectively lethal. Unchallenged, it will reveal an atavistic mantra that would further harden the hearts of even our most recalcitrant enemies. In brief, what is required now is the literal opposite of an incessantly belligerent nationalism. What is needed, at the core, is a substantially broadened acknowledgment of human interconnectedness.
Says the French Jesuit philosopher Pierre Teilhard de Chardin in his masterwork, The Phenomenon of Man: “No element can move and grow except with and by all the others with itself.”
From the 1648 Peace of Westphalia to the present fragmenting moment, world politics has been shaped by a continuously shifting balance of power, and by certain relentless correlates of war, terror, and genocide. Ideally, hope should still exist, but now it must sing more softly, unobtrusively, and in a decisively prudent undertone. So, what now?
Finally, merely to survive on this imperiled planet, all of us, together, must seek to rediscover an individual life, one that is consciously detached from any ritualistically patterned conformance, cheap entertainments, shallow optimism, or disingenuously contrived expressions of American tribal happiness. At a minimum, such survival will demand a prompt retreat from what US President Donald Trump has termed “America First.” In this regard, Trump’s so-called rallies are just the symptom of a much deeper pathology, a know-nothing populism more closely reflecting the philosophy of Joseph Goebbels (“Intellect rots the brain”) than the pro-education credo of Thomas Jefferson.
It was Donald Trump, after all, who said unashamedly during the 2016 campaign: “I love the poorly educated.” This is the very same president who once exclaimed confidently that the moon “is part of Mars,” and who openly lamented that Denmark would not consider selling Greenland.
As Jefferson and the Founding Fathers had earlier understood, there is a respectable place for a proper erudition. Learning from history, Americans may yet learn something from “America First” that is still useful and redemptive. They may learn, even during this national declension Time of Trump, a time for authentic tribulation, that a commonly felt agony is more important than astrophysics; that a ubiquitous mortality is more consequential than any transient financial “success;” and that shared human tears may reveal much more deeply consequential meanings than “everyone for himself” tax reductions or porously unsuitable border walls.
In The Decline of the West, first published during World War I, Oswald Spengler asked: “Can a desperate faith in knowledge free us from the nightmare of the grand questions?” This remains a vital query, one that will assuredly never be raised in our universities, on Wall Street, or absolutely anywhere in the Trump White House. Still, we may learn something productive about these “grand questions” by more closely studying American responsibilities in world politics.
Then we might finally understand that the most suffocating insecurities of life on earth can never be undone by further militarizing global economics, building larger missiles, abrogating international treaties, or replacing one abundantly sordid foreign regime or movement with another.
In the end, even in American politics and foreign policy decision-making, truth is exculpatory. In what amounts to a uniquely promising paradox, therefore, “America First” can express a blatant lie that may nonetheless help us see the truth. This peremptory truth is not really dense or unfathomable. Americans require, after all, and above all else, a substantially wider consciousness of unity and relatedness between individual human beings and between nation-states.
“In a dark time,” we may learn from the
poet Roethke, “the eye begins to see.”
 From the standpoint of classical political and legal philosophy, such a national policy would be the diametric opposite of the statement by Emmerich de Vattel in The Law of Nations (1758): “The first general law which is to be found in the very end of the society of Nations is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.”
 Collected Poems, 1966.
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