pageok
pageok
pageok
Suicide Pacts:

A reader, responding to my post about treason and speech, writes:

If you think the Founders would approve of any test other than 1 or 2, you are nuts. It's a cliche, but its true: The Constitution is not a suicide pact.

I've long been troubled by the one-liner that "The Constitution is not a suicide pact"; let me explain why.

1. If we interpret the "suicide" in "suicide pact" in a strong sense -- the Constitution doesn't require government forbearance where such forbearance would mean the nation's death as a free and independent country -- then the one-liner is probably right. Yes, if some action was genuinely necessary to preserve the nation's very existence as an independent country, I doubt that the Framers contemplated that the government should be blocked from engaging in this action, even if it meant restricting speech, engaging in broad and otherwise forbidden searches and seizures, and the like.

Nor do I think that we should insist that the government remain powerless to do what needs to be done to preserve the country's existence. Let justice be done, I say, but not the point that the heavens fall. (Or perhaps if we let justice be done though the heavens fall, the result isn't really justice.)

2. But the trouble is that the one-liner is generally used about behavior that doesn't really significantly threaten the nation's death as a free and independent country. Axis Sally's speech didn't cause our nation's death or loss of independence; nor would it have seemed likely to do so; nor would the threat of treason prosecutions for such propaganda during World War II have materially increased our chances of national survival.

Yes, Axis-Sally-like speech might have hurt our war effort in some measure, and led to some decline in morale and some extra deaths of our soldiers. It may well have deserved punishment as a result (I think it did). Maybe even all speech that is intended to help the enemy in time of war deserves punishment, as my correspondent writes (though I don't think that such a broad speech restriction would be constitutional). But calling the toleration of such speech a matter of "national suicide" is hyperbole, not a reflection of reality. And I've found that the same is true in most cases where the "not a suicide pact" one-liner is deployed.

What's more, if the claim really is that the Constitution doesn't require government forebearance where such forbearance would cause some loss in warmaking effectiveness, or some threat of death to soldiers or others, I don't think this claim is sound. It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty. They thought that on balance liberty would make the nation more secure, against foreign enemies as well as domestic, but they must surely have realized that many of the amendments (the First, the Second, the Fourth, and others) would sometimes lead to pretty serious harms, including the death of soldiers.

To give just one example, a "peace with honor" Presidential candidacy during a wartime election may well embolden the enemy, prolong the war, and cost American lives. But the Constitution doesn't provide for suspending elections during wartime, and our traditions have in fact allowed such elections, even when they might have lengthened wars.

3. So the real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers. That's a hard and important question (see pp. 97-100 of this article for my one brief attempt to grapple with it in one particular context). But assertions that "The Constitution is not a suicide pact," which usually rest on hyperbole about what constitutes "suicide," do not, I think, advance our thinking about this question.

For an illustration that I get similarly annoyed by some libertarian one-liners as well as conservative ones, see here (criticizing the frequent quotes of Benjamin Franklin's "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety").

CharleyCarp (mail):
It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty.

Precisely. More to the point, though, in the current situation, the Framers deliberately sacrificed a great deal of government effectiveness to promote liberty, by intentional diffusion of power. The idea that they endowed the commander-in-chief with the power to override statutes, using only the language actually in the Constitution, is simply breathtaking to me.

I'm sure there's been plenty of scholarship on this question too, but I'm curious about the originalist view of waiver and accretion. We're mostly familiar, I'd imagine, with the holding in Dames &Moore v. Regan that the President can gain power allocated to the Congress (to enter into executive agreements that have the force of law) by acquiescence, and similar holdings (like in the recent Hamdan case in the DC Circuit) that notwithstanding the seemingly explicit language of the Constitution, the requirement of a congressional declaration of war is 'quaint.'

Can allocations of power in the Constitution really change over time? Does one president's ultra vires but unquestioned act empower later presidents, and disempower Congress?

Can anyone refer me to any good scholarship on this from an originalist perspective?
8.18.2005 8:00pm
jd:
"The idea that they endowed the commander-in-chief with the power to override statutes, using only the language actually in the Constitution, is simply breathtaking to me."

Surely you need to look no further than "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

It seems obvious that the President can override statutes if in doing so he believes that the result will be the preservation of the constitution.
8.18.2005 8:13pm
Perseus (mail):
"It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty."

Quibble: Madison saw the Bill of Rights as merely providing additional security against the possible "abuse of the powers of the General Government." Anti-Federalists like Aedanus Burke caught on to Madison's subterfuge, calling the amendments "little better than whip-syllabub, frothy and full of wind, formed only to please the palate." Thus it is especially in the Constitution, not the Bill of Rights, that the Framers deliberately sacrificed some government effectiveness in order to promote liberty.
8.18.2005 10:55pm
guest poster:
My favorite misuse of the suicide-pact one-liner comes from the movie industry's Judge Lewis Kaplan, ruling that the DeCSS computer code is not expressive enough to be protected speech and so cannot be published:

"The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact."

Yeah, sure. I don't think copyright, and the bottom-line of movie companies, is integral to the continued survival of the United States.
8.18.2005 11:18pm
W.J.Hopwood (mail):
The term "suicide pact" used in connection with the Constitution is only a figure of speech used for emphasis but not to be taken literally. Admittedly the phrase can sometimes be hyperbolic but under certain circumstances, war for instance, it can nonetheless be appropriate in emphasizing how consitutional interpretations under peacetime conditions would be inappropriate under wartime conditions.

In my view, although I've never seen it used in this connection, the phrase would be appropriate in referring to Justice Frankfurter's separate concurring decision in Korematsu (1944) which upheld FDR's E.O.9066 under which persons of Japanese descent were excluded from West Coast military areas for national security reasons:

"...the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war need by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality."

And by the way, how about throwing in "shouting fire in a crowded theater" for good measure. According to Wikipedia, the online free enclyclopedia: "The term was coined by Justice Oliver Wendell Holmes, Jr., in 1919, during a United States Supreme Court case known as "Schenck v. United States", which condemned a draft-resistance pamphlet. Justice Holmes was quoted as stating: 'The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.' The phrase 'shouting fire in a crowded theater' has since come to be known as synonymous with an action that abuses free speech rights or uses such rights to place others in physical danger. Examples would be publicly publishing lists of undercover police officers within the communities which they were operating or posting classified military secrets on the internet would could affect national security."
8.19.2005 1:43am
Dan Simon (www):
So the real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers.

I'm neither a lawyer nor even an American, and I don't much care for the current state of US Constitutional law in the first place, so I suppose my opinion shouldn't matter much. But I've always interpreted the phrase, "the Constitution is not a suicide pact", to mean, not that exceptions to otherwise hard-and-fast Constitutional rules can be made in the case of grave dangers to the nation--after all, what's the point of hard-and-fast Constitutional rules, if they don't apply when the chips are down?--but, rather, that hard-and-fast Constitutional rules that could pose a grave danger to the nation under certain circumstances are clearly bad Constitutional rules, and should cease to be considered as such.

For example, the First Amendment doesn't protect the publication of classified government secrets--even ones whose publication obviously isn't a grave threat to national security. That's because First Amendment protection of the publication of classified government secrets could, in reasonably plausible circumstances, pose a grave threat to national security, and a Constitutional rule that protected it in general would therefore effectively turn the Constitution into a "suicide pact". Similarly, extending the right to a civilian criminal trial to the foreign nationals held in Guantanamo is unlikely to pose a grave threat to the nation. But if all of the potentially thousands or even millions of foreign POWs in future wars were to be accorded that right, then that very well might--as I believe Eugene has previously argued--pose a real threat to the country's very ability to make war, even in its own last-ditch defense. Hence the claim that the Guantanamo detainees are Constitutionally entitled to their day in civilian court fails on the "not a suicide pact" principle.

Of course, this standard likely reduces the range of legitimate hard-and-fast Constitutional rules more than Eugene would like. Personally, as a believer in virtually unfettered democracy, I consider that to be a point in its favor.
8.19.2005 4:18am
Bruce Wilder (www):
". . . the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty."

Is that what they did? To say so, is practically a cliche. EV challenges the "suicide pact" cliche on the grounds that it (usually) constitutes hyperbole, but does not challenge the notion that the Bill of Rights is somehow generally opposed to governmental effectiveness.

The separation of powers, limits on government authority, and recognition of individual rights embodied in the Cosntitution, generally tend to undermine not effectiveness, but expedience, because they tend to encourage rational deliberation and persuasion.

If you think that what ought to be done, and how it ought to be done, is obvious, and effective government is simply a matter of giving some individual unambiguous authority to do what needs to be done, then, presumably, you are an authoritarian politically. You are also seriously delusional.

The Bill of Rights is not opposed to effective government, it is a prerequisite.
8.19.2005 4:29am
Public_Defender:
The professor does a good job of explaining how the "suicide compact" phrase is mostly meaningless hyperbole. The phase is a truism with that adds as much to a debate as "people fought and died for this right."

There is, however, one clear definition: When judges use the phrase, they mean, "we're going to let the government do what it wants."
8.19.2005 7:30am
Eh Nonymous (mail) (www):
I agree with Public_Defender's comment. Scalia uses that phrase when he feels the heavens will fall unless the government gets to harm some otherwise protectable private interest.

Prof. E.-to-the-V.: I liked your old post on the Franklin line. I use it a lot, and you're right, the emphasis on "essential" is key. Not on "temporary," though.

What good would it be, I defy anyone to answer, to give up our essential liberties in order to gain security of any sort? Essential, not important. Can't do without.

If I couldn't go out in public without my ID card; could not vote for my candidate of choice; could not speak in public against the government; could not read what I wanted, or write (or learn how to write or teach others to) or speak (in certain public fora so long as etc.); if I could not bear arms nor have a right to an attorney nor have a chance to challenge the factual and legal predicates for my imprisonment or death; then WHAT GOOD IS A CONSTITUTION?

Also, what kind of "security" would it be? The security of the Stalinist state, wherein we are all free, so long as we are not suspected?

Those who emphasize the grave dangers of the war on terror, who speak of the ticking bomb or the impending threat, and who point to Korematsu, should remember how stupid, how awful, how pathetic that craven cave-in by gullible justices in the face of outright lies about military necessity by racist military and civilian leaders, supported by monetarily interested parties.

Similarly, think about how effective the speech at issue in Schenk would have been, and compare concept of a crime of "incitement to riot" with the "advocating" sort of crime he was charged with.
8.19.2005 11:42am
jen (mail):


Much of the right has always admired the enemy and felt their approach superior. They echoed the communists in the critique of our "flabby weakness" and the success of our system never convinces them. Nowadays we have entered into "faith based reality" where happy thoughts win the war and "defeatists" undermine it, thus any reporting of bad news is considered treason. You need to extend your categories where number 0 is anything that might call into question the note that this is the best of all possible wars. The categories you have entered would make it impossible for Hillary to be shot for saying we need more troops when all decent people know she's been saying this for years to undermine the president.
8.19.2005 3:16pm
Goober (mail):
Public Defender:

Have to disagree.

The suicide-pact line (I believe from J. Jackson), it has always seemed to me, is to the compelling-government interest test what Footnote Four is to the suspect-classification inquiry. That is, the logical seedling that eventually became doctrine. That is, one way of restating that the constitution is not a suicide pact is that the Equal Protection, e.g., is not violated where a compelling government interest necessitates the action. (No one teaches the plain meaning of "compelling" anymore, but the word means what it means.)

And of course, once a court reaches the point of asking whether a governmental objective is "compelling," the government usually loses.

Professor Volokh: I would say this also contradicts your assumption that there is, in fact, a special constitutional rule being applied. The normal rule always contains the CGI exception; it appears that all these situations are just applications of the ordinary rule.
8.19.2005 4:40pm
W.J.Hopwood (mail):
Eh Nonymous says: "Those who...point to Korematsu, should remember how stupid, how awful, how pathetic that craven cave-in by gullible justices in the face of outright lies about military necessity by racist military and civilian leaders, supported by monetarily interested paties."

A frequent emotionalized reaction without factual basis, frequently expressed by those inclined to impose contemporary politically-correct mythology on the wartime realities of the past. Despite such flights of fancy, Korematsu was well-decided and still stands. Under current threats of terrorist action, it may prove to be a quite useful precedent.
8.19.2005 11:46pm
Rich Rostrom (mail):
The U.S. during WW II was in no danger from "Axis Sally" type speech because it was not allowed. Sally herself could broadcast from Berlin, but with very limited reach. If 'free speech' had protected even pro-enemy propaganda in wartime, the U.S. media would have been seriously infected with poisonous claptrap (Red-baiting, Jew-baiting, Pearl Harbor conspiracy, anglophobia). The war effort could have been seriously disrupted.
8.22.2005 9:58pm