The Constitution is not a suicide pact
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"The Constitution is not a suicide pact" is a rhetorical phrase in American political and legal discourse. The phrase expresses the belief that constitutional restrictions on governmental power must give way to urgent practical needs. It is most often attributed to Abraham Lincoln, as a response to charges that he was violating the United States Constitution by suspending habeas corpus during the American Civil War. Although the phrase echoes statements made by Lincoln, and although the sentiment has been enunciated several other times in American history, the precise phrase "suicide pact" was first used by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court.
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[edit] History
[edit] Jefferson's Formulation
Jefferson offered one of the earliest formulations of the sentiment, although not of the phrase. In 1803, Thomas Jefferson's ambassadors to France arranged the purchase of the Lousiana territory in conflict with Jefferson's personal belief that the Constitution did not bestow upon the federal government the right to acquire or possess foreign territory. Due to political considerations, however, Jefferson disregarded his constitutional doubts, signed the proposed treaty, and sent it to the Senate for ratification. In justifying his actions, he later wrote: "[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. 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 the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means."[1]
[edit] Lincoln's Suspension of Habeas Corpus
Under the United States Constitution, once war is declared by the United States Congress, habeas corpus can be suspended pursuant to the constitution. See United States Constitution. Thus, suspension of habeas corpus was both legal and constitutional. After habeas corpus was suspended by General Winfield Scott in one theater of the Civil War in 1861, Lincoln did write that Scott "could arrest, and detain, without resort to ordinary processes and forms of law, such individuals as he might deem dangerous to public safety." After Chief Justice Roger B. Taney attacked the president for this policy, Lincoln responded in his First Message to Congress in December 1861 that an insurrection "in nearly one-third of the States had subverted the whole of the laws . . . Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"
Later in the war, after some had criticized the arrest and detention of Congressman Clement Vallandigham of Ohio, Lincoln wrote to Erastus Corning in June 1862 that Vallandigham was arrested "because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. . . . Must I shoot a simple-minded deserter, while I must not touch a hair of a wily agitator who induces him to desert?"
[edit] Jackson's Terminiello Formulation
In the Terminiello case, the majority opinion by Justice William O. Douglas overturned the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rantings at a rally had incited a riot. The Court held that Chicago's breach of the peace ordinance violated the First Amendment.
Jackson wrote a twenty-four page dissent in response to the Court's four page decision, which concluded: "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."
[edit] Posner's Application to Terrorism
In 2006, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit and professor at the University of Chicago Law School, wrote a book called "Not a Suicide Pact: The Constitution in a Time of National Emergency." [1] In the book, Posner argues that facing terrorism and the threat of WMDs, the scope of constitutional rights must be adjusted in a pragmatic but rational manner. Using cost-benefit analysis to balance the harm new security measures inflict on personal liberty against the increased security those measures provide, Posner comes down, in most but not quite all respects, on the side of increased government power. Posner argues that terrorist activity is sui generis—it is neither "war" nor "crime"—and it demands a tailored response, one that gives terror suspects fewer constitutional rights than persons suspected of ordinary criminal activity.
[edit] Criticism
Warning against taking the "not a suicide pact" idea too far, Barbara Ehrenreich noted in a widely-quoted column in the New York Times [2] that the Declaration of Independence was, effectively, a suicide pact.
[edit] See also
[edit] External links
[edit] References
- ^ Brest, Paul, Sanford Levinson, Jack M. Balkin, Akhil Reed Amar, and Reva B. Seigel (2006). Processes of Constitutional Decisionmaking: Cases and Materials, 6th Edition, Aspen, 65–67.
