He Who Saves His Country

Salus Populi and the Rule of Law

President Donald Trump caused an uproar when he posted to Truth Social and X: “He who saves his Country does not violate any Law.” Trump posted the quote, often attributed to Napoleon Bonaparte, as a rebuke to the lower courts attempting to block his enforcement of immigration law and his freeze of foreign aid. He is participating—so far only rhetorically—in a long tradition of presidential defiance of the judiciary, tradition begun at least as early as Jackson and Lincoln and continued as recently as Biden.

Critics of judicial supremacy were quick to note that such friction between branches of government is healthy. Proponents of unitary executive theory, who take Article II seriously, averred that Trump’s quote in no way implied a violation of the Constitution. Believers in great men were giddy. Leftists, of course, shrieked in horror, citing “constitutional boundaries” and “limits of presidential power.” Bill Kristol, who can spot a Nazi anywhere, even in early-nineteenth century France, quipped that Trump’s quote “reads better in the original German.”

But not only is the essence of Trump’s message constitutionally defensible, it is necessary. It is nothing more than the ancient Ciceronian maxim, salus populi suprema lex est, “the wellbeing of the people is the supreme law,” or the related salus rei publicae suprema lex, “the safety of the state is the supreme law.” In either case, private interests and legal technicalities must yield when they conflict with the legitimate authorities’s pursuit of the public good.

From Cicero to Sidney to our own courts, this maxim has been understood to undergird any legitimate government. It was infused into the Anglo-American common law tradition and invoked often by our founders. Whatever the origin of society and government, said James Otis, “the end of it is manifestly the good of the whole. Salus populi supreme lex esto, is of the law of nature.” Not only is the “welfare, safety, peace, and protection” of the people the supreme law of government, said William Prynne, but the “principal end” for which God created it. This is the supreme law, per Samuel Rutherford, that constrains rulers. This is the rule of law, that phrase pundits now flippantly invoke against Trump.

Moreover, the fundamental principles of equity and discretion justify the President’s use of this maxim; the nation’s executive, as the living law, is charged with preserving this end of government.

As Hadley Arkes reminded us 35 years ago, if we would understand our constitutional order, we must grasp the more basic principles of political institutions and government—we must move beyond the written constitution to the unwritten. That is, if we want to “tell the difference between good regimes and bad ones.”

The fundamental law, said Samuel Adams, of all commonwealths is the preservation of society itself. As with individuals, the natural law of self-defense and reproduction applies to communities. Likewise, John Locke declared the people’s welfare to be so “fundamental a rule” that whoever “sincerely” pursues it “cannot dangerously err.” No true law or frame of government can contradict it. This rule applied especially to the executive prerogative, the “power to act according to discretion, for the public good, without the prescription of law, and sometimes even against it.” When legislative and executive power are in distinct hands, the discretion of the executive is paramount, according to “the common law of nature.”

So-called classical liberals cannot make sense of this, though they claim Locke as their patron saint. They are so fixated on the frame and procedure of government that they have forgotten (or refuse to ask) what government is for. Legitimacy does not depend first of all on proper means, but on proper ends. Government is not an algorithm, and people are not cogs.

If we think of the commonwealth as a house, there are times when the ornaments, walls, and even the frame of the house must be sacrificed to save the foundation, or when the entire structure must be vacated to save the lives of the inhabitants for whom the house was built in the first place.

This is especially the case when the political law, as Montesquieu called it, itself threatens this basic aim of all polities. It would be a curious commonwealth indeed that never faced crises that could only be resolved by the temporary or permanent circumvention of its established order, laws, or norms. Far from this being traitorous or innovative, it is perfectly consistent with the political law itself, insists Montesquieu, since both the old law and any changes “depend on the principle that the safety of the people is the supreme law.” Rutherford concurred: “no law in its letter, hath force, where the safety of the subject is in hazard: and if law, or king, be destructive to the people, they are to be abolished.”

Thomas Aquinas recognized that the letter of the law must sometimes be disobeyed in order to achieve the common good toward which every law is ordered. Even well-constructed laws are predicated on limited foresight. “Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed.” This the Angelic Doctor illustrates with a case: Suppose a law required the city gates to remain locked in the evening. This is a generally good law ordered to the security of the people. But, in the case of citizens outside the city walls fleeing from an enemy, the gates should be opened for them contrary to the letter of the law; the spirit and intent of the law is thereby maintained and cannot be otherwise.

Thomas Jefferson articulated the same principle. Observance of the law was a duty of citizens, Jefferson wrote to John Colvin, but not the highest duty. “The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself… absurdly sacrificing the end to the means.” Notable is that Jefferson admitted that the Louisiana Purchase was unconstitutional, strictly speaking, but necessary to the national good. John Marshall, inventor of judicial supremacy, would justify Jefferson’s action over 20 years later.

This principle of equitable discretion for the public good applies also to any constitutional arrangement, whether the product of parchment or expectation. The executive, the executor of law, is most responsible for internal correction, and the most imbued with discretion. The extent to which a legislature and judiciary can exercise the same kind of judgment is inherently limited. Such executive power, Hamilton notes in Federalist No. 70, is “essential to the steady administration of the laws” and the security of the people, even of republican government. Hamilton’s illustration of this principle may shock the reader. It was that of the Roman dictator in whom, in times of trouble, the “republic was obliged to take refuge,” trouble being not only foreign threats but “the intrigues of ambitious individuals” who “threatened the existence of all government.”

This is no excuse for arbitrary and capricious actions. If the chief magistrate is the lex animata, the living law, he must respect the law, it must constrain him, but according to its true foundation and end. Absent this discretion, we are left with mere parchment guarantees. As Calvin said, “nothing could be more truly said than that the law is a dumb magistrate and that the magistrate is a living law.”

The frame, scheme, or system of government is a means to an end, not the end itself, John Adams taught us. The “public good, the salus populi, is the professed end of all government, the most despotic as well as the most free.”

A government of the most balanced “combination of powers” is nothing if it doesn’t secure the good of the people, the nation. As Michael Lind rightly observes, the government and nation are not synonymous; the former serves the latter and is legitimated to the extent that it does so. 

Trump is appealing to a higher law, a truer principle, of governance. The only remaining questions are substantive (not procedural), namely, whether Trump, should he defy the courts, really is pursuing the good of the nation.

Is the national interest violated or furthered by recalling from abroad the thousands of career bureaucrats who waste millions of dollars spreading the transgender gospel? Does ending our propagation of atheism in Asia, DEI in the U.K., and gender studies in the Middle East violate the salus populi? Was the USAID slush fund a mechanism of private enrichment (i.e., tyranny) or public good?

What about challenging the absurd extension of nineteenth century amendments to baptize all foreign claims to citizenship? Is the executive’s attentive supervision of the agencies and officers that operate under his auspices a violation of our frame of government? What of those agencies’ studied neglect of established law? Trump has thus far proposed nothing more radical than all this. More pointedly, do the policies Trump endeavors to rollback promote or prey upon the public good?

Trump is armed with an unprecedented popular mandate. On that basis, he is locked in a battle with an entrenched oligarchy. We should be grateful that the battle is happening at all. This is no tyranny or dictatorship, as the perpetually hysterical professional commentators claim. It is the opening salvo in battle to revive the fundamental law of true government. The president is executor of the laws, but this duty does not override a higher law: salus populi.

Image: Equestrian Portrait of Napoleon I, Joseph Charbord, 1810.

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