Tuesday, August 17, 2010

The Constitution is not objectively pro-suicide

Apropos of The Most Abused Supreme Court Quotation Ever, Jackson's "the Constitution is not a suicide pact," CharleyCarp comments:
Whenever I see that Jackson quote, I recall that the Declaration of Independence was a suicide pact.
Great line.

... I see now that we've all been blaming Jackson, but damn if Wikipedia doesn't have an article on "The Constitution is not a suicide pact." Here's Jackson from his dissent in Terminiello v. Chicago:
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.
The formulation closer to the common one in use today is actually the fault of Justice Goldberg, in Kennedy v. Mendoza-Martinez, which held that a statute automatically stripping citizenship from draft-dodgers was unconstitutional. Goldberg for the Court:
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.
This in a decision which ultimately fell on the side of individual rights. Triple snob points for using that at your next cocktail party: "Well, as a matter of fact, that's closer to Justice Goldberg's formulation, not Justice Jackson's." Sure to impress the ladies.

It also bears remembering how *bad* Jackson's vote was in Terminiello. The Chicago ordinance prohibited speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." Talk about a suicide pact for democracy.

1 comment:

  1. Right. Not a suicide pact, but [d]ating back to Magna Carta, however, it has been an abiding principle governing the lives of civilized men that "no freeman shall be taken or imprisoned or disseised or outlawed or exiled . . . without the judgment of his peers or by the law of the land . . . ." What we hold is only that, in keeping with this cherished tradition, punishment cannot be imposed "without due process of law." Any lesser holding would ignore the constitutional mandate upon which our essential liberties depend.