“The Constitution is not a suicide pact.”
The first time I heard that phrase, I thought it was a pretty good line, and I agreed with it. In a sense, I still do. That’s because the first time I heard it I interpreted it backwards from how most people do when they invoke it. I never knew why the other interpretation was the one that caught on.
I stumbled on the answer the other day when Scott Greenfield quoted from Justice Robert Jackson’s 1949 dissent from Terminiello v. Chicago, in which the Court overturned a conviction for an apparently somewhat hateful speech that violated Chicago’s breach of peace ordinance because it stirred up anger between those who heard it and those who were protesting it. Two other Justices wrote dissents (i.e. supported the conviction) on somewhat technical grounds, but Jackson argued that the Court should have upheld the conviction because it was critical to preserving the public order:
…underneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order.
He then goes on to describe the public response to the speech and quote from it extensively. Honestly, I skimmed over the speech (apparently something about commie Jews), but it sounds like Terminiello was something of a fascist. The protesters outside the auditorium supposedly were communists, which created the potential for some rioting. All of which apparently gave Justice Jackson visions of World War II breaking out all over again, right there on the shores of Lake Michigan:
This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe.
Jackson’s dissent goes on and on — including quoted material, it runs to almost 8000 words — ending with this:
This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. 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.
Greenfield explains what that has come to mean:
That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.
To me, Justice Jackson’s position is somewhat daft. What’s the point of preparing a written Bill of Rights and having it ratified by the States if you allow the courts to ignore it whenever obeying seems like hard work?
What Jackson proposes is like calling your homeowner’s insurance company while staring at the smoking ruins of your house only to have the claims agent respond, “The whole thing burned down? Oh wow… No, buying you a whole new house would be way too expensive… I’m sure you understand that we didn’t anticipate anything that bad happening to your house when we sold you the policy…”
Just as we only need homeowner’s insurance when something really bad happens to our home, we only need our legal rights when the government thinks we’re doing something bad. There’s no point to a Bill of Rights that only protects us when the government doesn’t mind what we’re doing. We don’t need protection when no one’s out to get us. We need protection when the powers-that-be think we’re the enemy.
But people with views like Jackson (or Posner) argue that those are the very times when the Courts should be less rigid about protecting people’s rights. They speak of times of “unprecedented perils” and “existential threats” to our country. (The sources of the threats change over time — communist spies, civil rights agitators, militias, drug dealers, Satanists, human traffickers, terrorists — but the solution is always drearily authoritarian.) To ignore the danger because we are too worried about phantoms of lost liberty would be tantamount to suicide, and our commitment to Constitutional rights is not so great as to require we follow it to our deaths. The Constitution is not a suicide pact.
When I first head that phrase, however, I understood it to mean something different: The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?
Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.
And of course there’s colonial America, creators of that Constitution we were just talking about. The new United States had just fought a war for independence against one of the most powerful enemies we’ve ever faced (only the nuclear-armed Soviet Union would be proportionately more powerful), and it was in the aftermath of that war that the Bill of Rights was created, setting forth our rights in some rather absolutist language. Clearly the authors did not think due process and freedom of speech were a recipe for national destruction.
Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.
I suppose folks like Jackson are right in a sense: We still do have to find a balance between liberty and order. But I would argue that we did find that balance, and we wrote it down in the Constitution. It’s not a suicide pact, but it is a pact: If some people think it’s time to change that pact, let them make their argument for changing it and follow the process for amending it. Otherwise, keep the order you think is so important by following the rules.