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

Steven Newcomb



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.”


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.

You need to be logged in in order to post comments
Please use the log in option at the bottom of this page




whiteduck's picture
Glad to see Americans, in general, are enduring the same violations from thier leaders as us native americans are from our leaders! LOL