The Constitution is not a suicide pact
Encyclopedia
"The Constitution is not a suicide pact" is a phrase in American
political and legal discourse. The phrase expresses the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people. 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 versions of the sentiment have been advanced at various 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. The phrase also appears in the same context in Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court decision written by Justice Arthur Goldberg
.
'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."
. The Confederacy was rebelling, thus suspension of habeas corpus was both legal and constitutional—but only if done by Congress, since the Constitution reserves this power under Article I, which pertains solely to congressional powers; Lincoln, meanwhile, usurped the power under his own executive order. 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 a Special Session to Congress on July 4, 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?" Lincoln did not comment on the proper channels of due process regarding such "agitation."
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
.
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
."
wrote the court's opinion in the 1963 U.S. Supreme Court case Kennedy v. Mendoza-Martinez. The court determined that laws permitting stripping draft evaders of their citizenship are unconstitutional. Goldberg wrote: "The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. 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. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government."
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."
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.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
political and legal discourse. The phrase expresses the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people. It is most often attributed to Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
, as a response to charges that he was violating the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
by suspending habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
. Although the phrase echoes statements made by Lincoln, and although versions of the sentiment have been advanced at various times in American history, the precise phrase "suicide pact
Suicide pact
A suicide pact is an agreed plan between two or more individuals to commit suicide. The plan may be to die together, or separately and closely timed. Suicide pacts are important concepts in the study of suicide, and have occurred throughout history, as well as in fiction.Suicide pacts are generally...
" was first used by Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
in his dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
in Terminiello v. Chicago
Terminiello v. Chicago
Terminiello v. City of Chicago, 337 U.S. 1 , was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago which banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance"...
, a 1949 free speech case decided by the U.S. Supreme Court. The phrase also appears in the same context in Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court decision written by Justice Arthur Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
.
Jefferson's formulation
Jefferson offered one of the earliest formulations of the sentiment, although not of the phrase. In 1803, Thomas JeffersonThomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
's ambassadors to France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
arranged the purchase of the Louisiana territory
Louisiana Purchase
The Louisiana Purchase was the acquisition by the United States of America of of France's claim to the territory of Louisiana in 1803. The U.S...
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."
Lincoln's suspension of habeas corpus
Under the United States Constitution, habeas corpus can be suspended pursuant to the constitution in cases of rebellion or invasion. See United States ConstitutionUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. The Confederacy was rebelling, thus suspension of habeas corpus was both legal and constitutional—but only if done by Congress, since the Constitution reserves this power under Article I, which pertains solely to congressional powers; Lincoln, meanwhile, usurped the power under his own executive order. After habeas corpus was suspended by General Winfield Scott
Winfield Scott
Winfield Scott was a United States Army general, and unsuccessful presidential candidate of the Whig Party in 1852....
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
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Roger B. Taney
Roger B. Taney
Roger Brooke Taney was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He was the first Roman Catholic to hold that office or sit on the Supreme Court of the United States. He was also the eleventh United States Attorney General. He is most...
attacked the president for this policy, Lincoln responded in a Special Session to Congress on July 4, 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
Clement Vallandigham
Clement Laird Vallandigham was an Ohio resident of the Copperhead faction of anti-war Democrats during the American Civil War. He served two terms in the United States House of Representatives.-Biography:...
of Ohio, Lincoln wrote to Erastus Corning
Erastus Corning
Erastus Corning I , American businessman and politician, was born in Norwich, Connecticut. Corning moved to Troy, New York at the age of 13 to clerk in the hardware store of an uncle; six years later he moved to Albany, New York, where he joined the mercantile business under James Spencer...
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?" Lincoln did not comment on the proper channels of due process regarding such "agitation."
Jackson's Terminiello formulation
In the 1949 TerminielloTerminiello v. Chicago
Terminiello v. City of Chicago, 337 U.S. 1 , was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago which banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance"...
case, the majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
by Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
overturned the disorderly conduct
Disorderly conduct
Disorderly conduct is a criminal charge in most jurisdictions in the United States. Typically, disorderly conduct makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such...
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
Breach of the peace
Breach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
ordinance violated the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
.
Associate Justice Robert Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
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
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
into a suicide pact
Suicide pact
A suicide pact is an agreed plan between two or more individuals to commit suicide. The plan may be to die together, or separately and closely timed. Suicide pacts are important concepts in the study of suicide, and have occurred throughout history, as well as in fiction.Suicide pacts are generally...
."
Goldberg's Kennedy formulation
Justice Arthur GoldbergArthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
wrote the court's opinion in the 1963 U.S. Supreme Court case Kennedy v. Mendoza-Martinez. The court determined that laws permitting stripping draft evaders of their citizenship are unconstitutional. Goldberg wrote: "The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. 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. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government."
Posner's application to terrorism
In 2006, Judge Richard PosnerRichard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
of the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
and professor at the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
, wrote a book called "Not a Suicide Pact: The Constitution in a Time of National Emergency."
In the book, Posner argues that facing terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
and the threat of WMDs, the scope of constitutional rights must be adjusted in a pragmatic but rational manner. Using cost-benefit analysis
Cost-benefit analysis
Cost–benefit analysis , sometimes called benefit–cost analysis , is a systematic process for calculating and comparing benefits and costs of a project for two purposes: to determine if it is a sound investment , to see how it compares with alternate projects...
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.