Steven Newcomb

The ‘Higher Law Background’ of the U.S. Constitution

On December 31, 2011, President Barack Obama signed the National Defense Authorization Act (NDAA) for 2012. By doing so, he thereby placed his imprimatur as President of the United States on a provision in that Act that codifies in U.S. law the military detention of anyone in the world, without charge or trial, and without a time limit. Even U.S. citizens can be held until the end of hostilities in a climate of war that has been called “generational.

As an American Indian, I find this development unbelievably fascinating, and unnerving. Think about the irony: The first African American President of the United States, a former civil rights attorney and professor of constitutional law, has now become a President of the United States who has helped to further undermine, and perhaps destroy, the U.S. Constitution. He has done so by signing into U.S. law a legislative provision—which he requested—that, in effect, guts the tradition of habeas corpus, and arguably institutes martial law in the United States.

The military detention provision of the NDAA overturns a feature of Western law that has been around since the Magna Carta of 1215 A.D. In 1956, Winston Churchill said of the Magna Carta: “…here is a law which is above the King and which even he must not break.” This idea of “law,” such as the Magna Carta, being “above the King,” or “above the U.S. President or Congress,” for that matter, is an integral part of the very concept of ‘the rule of law.’ Yet Congress and the Executive Branch of the United States have decided to ignore the fact that the purpose of ‘the rule of law’ in a constitutional system is to hold government, and government officials in check so as to safe-guard ‘the people.’

Because “government” involves the potential to use lethal force, those who are entrusted with that deadly capability must be held in check; they must be constrained by the ‘rule of law’ so as to prevent abuse of power. Yet for generations, the United States has been steadily devolving into lawlessness by eroding the legal constraints on government. Now we see that those in the U.S. government system who purport to represent ‘the people’ have openly and notoriously declared themselves to be free from the constraints of the U.S. Constitution and the tradition of the Magna Carta.

With the NDAA, the U.S. Congress and Executive Branch have declared that the battlefield of the ‘war on terror’ includes ‘the homeland’ of the United States; they have declared the ‘citizenry’ of the United States to be subject to U.S. military action, under “the law of war.” Given that Congress unilaterally declared American Indians to be U.S. citizens in 1924, Indian Country had better be concerned that the U.S. government will consider indefinite military detention applicable to any Indian person the U.S. government decides to designate as a threat to the national security or sovereignty of the United States.

“Sovereignty” is a term coined by Jean Bodin in 1577 to express the doctrine of French Absolutism, or the divine right of the French monarch to absolute rule: “Supremacy over citizens or subjects, unrestrained by the laws.” Because a Latin word for ‘government’ is ‘domination,’ an accurate, but more explicit way of expressing “sovereignty” is, “Domination over citizens or subjects, unrestrained by the laws” (or ‘the rule of law).

The tradition of the Magna Carta is designed to guard against domination through due process of law. The eminent constitutional law expert Edward S. Corwin (1878-1963) pointed out that “no part of Magna Carta can compare in importance with chapter twenty-nine”:

No free man shall be taken or imprisoned or deprived of his freehold or of his liberties or free customs, or outlawed, or exiled, or in any many destroyed, nor shall we go upon him, nor shall we send upon him, except by a legal judgment of his peers or by the law of the land.

Corwin considered the ‘higher law’ tradition of Magna Carta so important that he titled his 1928-29 Harvard Law Review article “The ‘Higher Law’ Background of American Constitutional Law.”

John Locke was another political thinker who provided ideas that Corwin said had “impressed themselves most definitely upon American constitutional law.” Locke said that “legislative power is not the ultimate power of the commonwealth, for ‘the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and property of the subject.’” Or, as the Antigone of Sophocles put it in 442 B.C., “an unjust law is not a law.”

Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008), and a columnist with Indian Country Today Media Network.


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The 'Higher Law Background' of the U.S. Constitution