The Constitution is not a suicide pact
"The Constitution is not a suicide pact" is a phrase in
Jefferson's formulation
Thomas Jefferson offered one of the earliest formulations of the sentiment, although not of the phrase. In 1803, Jefferson's ambassadors to France arranged the purchase of the Louisiana 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][2]
Lincoln's suspension of habeas corpus
Under the
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?"
Jackson's Terminiello formulation
In the 1949 case Terminiello v. City of Chicago, the majority opinion by Justice William O. Douglas overturned the disorderly conduct conviction of a priest whose rantings at a rally had incited a riot. The court held that Chicago's breach of the peace ordinance violated the First Amendment.
Associate Justice Robert 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."
Goldberg's Kennedy formulation
Justice Arthur Goldberg wrote the court's opinion in the 1963 U.S. Supreme Court case Kennedy v. Mendoza-Martinez. While the court ultimately determined that laws permitting stripping draft evaders of their citizenship on the basis of a perceived existential threat to the nation were unconstitutional, Goldberg acknowledged the "not a suicide pact" argument, writing: "The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact."[3]
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.[4][5] Posner's position[clarification needed] has drawn both critical opposition[5] and support.[6]
See also
- Civil rights
- Doctrine of necessity
- Free speech
- Guantanamo Bay detention camp
- Korematsu v. United States
- Trail of tears
References
- ^ Jefferson, Writings (Washington Ed. of 1853), vol. 5, p. 542.
- ISBN 978-0735550629.
- ^ "FindLaw's United States Supreme Court case and opinions". Findlaw.
- ISBN 978-0-19-530427-5.
- ^ a b Khawaja, Irfan (Spring 2007). "Review — Not a Suicide Pact: The Constitution in a Time of National Emergency by Richard A. Posner" (PDF). Dissent Magazine. 8. Democratiya — University of Pennsylvania Press: 95–107. Retrieved August 19, 2014.
- ^ Fletcher, George P. (January 7, 2003). "The Cliché that "The Constitution is not a Suicide Pact" — Why It Is Actually Pro-, not Anti-, Civil Liberties". FindLaw. Retrieved August 19, 2014.