The Constitution IS a suicide pact!

Whenever some bastard wants to do something unconstitutional this chestnut is trotted out: "The Constitution is not a suicide pact."

Two problems with that:

1) The formulation is NOT from a Supreme Court decision, as people often say. It was coined by Justice Robert H. Jackson in his 24 page dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court. "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."

If we are going to grant precedental weight to dicta from dissents then, obviously, we can "quote the Supreme Court" on both sides of every issue. Decisions are precedent. Dissents are essentially op-ed pieces. (Albeit, often excellent op-ed pieces... many of my favorite legal writings are dissents in cases the SC decided wrongly. The spirited dissents in Bush v. Gore are one fine example!)

2) The Constitution is, in fact, a suicide pact! It is not an agreement to commit suicide, but it is an agreement that governmental suicide is preferable to dishonor... that it is better the US government should fail before renouncing it's ideals. Anyone who knows a scrap of American history knows that. The United States was not created to survive forever, it was created to express a set of ideals. If it worked, great! If not, then at least it was a good try. There is no sense in our founding that the idea was to create something that would last forever, surviving at any moral cost. Half the signers probably expected the US to fail within a generation, but they were willing to give idealism a chance.

Since the United States did, in fact, fail within 80 years (The Civil War was a pretty clear failure of the Union as constructed in the 1780s) we could say that opposition to slavery was a suicide pact.

The United States is an Experiment. For instance... nobody knew whether a nation could survive giving people fair trials. It hadn't been tried before. Maybe fair trials would result in anarchy, or a nation of criminals. If fair trials were fundementally inconsistant with social order then the US would have failed right out of the gate. But we didn't say people should get the fairest trials we felt we could afford... we said people have a human RIGHT to fair trials. The Constitution is a risky doccument... a daredevil gamble.

And if we abandon the ideals of the Constitution then we are no longer "The United States of America." The soil would remain, of course, but the founder's political creation would not. And that's what "The United States" is... a set of ideals, not a parcel of real estate.

One could counter with: Is "Live free or die" a suicide pact?" Is "Give me liberty or give me death" a suicide pact?

Related note, Barbara Ehrenreich once wrote a famous NYT op-ed about how the Declaration of Independence was, literally, a suicide pact:

http://query.nytimes.com/gst/fullpage.html?res=9D0DE4DF1F38F937A35754C0A9629C8B63

What was controversial about the Declaration and then the Constitution was the fact that an attempt was being made to frame a government whose origins and power came not from the Divine Right of Kings or monarchies, but from the People themselves.

At that time, that was indeed suicidal. Fast forward to the Civil War and you have Lincoln reminding us that our government was indeed, of, by, and for the people who created it.

Fast forward once more, to these times and places, and you have another suicidal notion - the people are no longer interested in their own supremacy but prefer to squabble about polls and personalities involved in selecting their leaders, and seem to have lost interest in that very simple phrasing from the days of this nation's birth - We, the People........

And I should be pleased the statement is not controversial on DU