A Note on the Suicide Pact
There is a standard in American jurisprudence, that the Constitution is not a suicide pact. While its phrasing started coalescing in a 1949 Supreme Court dissent, and was enshrined in a 1963 majority opinion, we can follow the basic idea back through Lincoln, and even to Thomas Jefferson.
It's a strange concept, insofar as Jefferson reflected on his constitutonal concerns about the Louisiana Purchase, and Lincoln was justifying his suspension of
habeas corpus; Justice Jackson's dissent in
Terminiello (1949) complains of overturning a disorderly conduct conviction in a free speech case, and warns that doctrinaire logic lacking practical wisdom will convert the Bill of Rights into a suicide pact. Justice Goldberg wrote the majority opinion in
Kennedy (1963), about the draft. The Court ultimately ruled staking citizenship on the draft was unconstitutional, but observed the government's authority, and, when acknowledging the Constitution protects individual rights, reminds that it is not a suicide pact.
The underlying concept seems pretty straightforward:
A law cannot be used to destroy
the law.
Terminiello was about free speech compared to inciting a riot, and whether a government had overextended its authority. The
Kennedy decision did not forbid the punishment of draft dodgers, but reined in the government from going too far. Jefferson's assertion was the weakest, reflecting on his test of constitutional boundaries; to lose the country for strict adherence to written law would lose the law itself, sacrificing the ends to the means. Lincoln was more straightforward: Should the government go to pieces, and all the laws be lost, for the sake of one law; more directly, it seemed amiss that he should execute a deserter but leave the inducing, facilitating agitators alone.
It can feel subtle, but it's actually observably simple. Take speech and incitement as an example. Should the U.S. government shut down rightist protests that actually lie? What about leftists huddled in the street, disrupting civic function? Why involve the government in contract negotiations, instead of simply jailing rail workers who strike? In the music wars of the 1980s, the conservative line was that one's right to free speech stopped at another's ear; it was a hijacking of another juristic doctrinal point, that your right to swing your fist ends at the tip of another's nose. Forty years ago, the argument was that we might forbid certain art because it offended Christian mores.¹ And no, it never really worked the other way around.
But ask this: Where is the suicide pact in all that? True, we can't go around banning everything simply because someone, somewhere is offended. Enforcing a Christianist standard violates the First Amendment, and in that sense we can actually see, these decades later, how the suicide pact works and plays out. If you can have free speech, but only if you don't offend a large, amorphous, dynamic assertion of religious supremacy, it's not really free speech. If your First Amendment right to free speech and press must kneel before another's First Amendment right to free religion, then you have neither.
The flip-side of that, of course, is purpose.
Imagine convening a bunch of scholars to review certain aspects of history, archaeology, and anthropology, at least, that we might discuss the real historicity of the Bible? It is not tyranny to refuse the podium to the atheist who wants to mock everyone because there is no God.
Similarly, if the IAU came together to revisit the Pluto question, it is not tyranny to refuse the podium to the geocentrist, young-Earth creationist, or Dianetic Xenut.
It is actually kind of hard to see what is so wrong about not sacrificing the ends to the means: Why should the IAU be obliged to accommodate that change of subject? If scholars are to review, say, a bolide event for its connection to a story in the Bible, there is no point in arguing about whether or not God exists.²
Sometimes the problem with comparative examples is the mess they make out of something that ought to be fairly simple.
†
There are, throughout the recent
Trump v. United States opinion↑ from the Eleventh Circuit Court of Appeals, elements of the suicide pact in play. When the court chooses against expanding equitable jurisdiction for every subject of a search warrant, for instance; or when the opinion acknowledges that the thread of prosecution can weigh heavily on a person under investigation, and then observes it is an "ordinary experience"; and it is the phantom juxtaposition against justification by prestige,
i.e., that Trump is a former president.
That last is the part where the Appeals Court perceived the need to cite
Brailsford: What Judge Cannon had done was overturn what was known and acknowledged since at least
1794, creating an exception that would destroy American jurisprudence. It's one thing for the Court to remind that the law is clear, but the opinion concludes by sweeping away the prospect of what is often referred to as legislating from the bench:
The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts' involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.
Dismissal is required in no small part because what Trump wants, and the district court gave, is in fact a constitutional suicide pact: In order to find for Trump, the Appeals Court must overturn the judiciary itself, all the way back to the 1794.³
†
There are, of course, other versions of the suicide pact. A subtle one in our personal experience has to do with rational discourse compared to the free speech of posting pretty much whatever you want. At Sciforums, we settled on a course that also comes up in larger social media considerations, what Nobel laureate
Maria Ressa↱ describes as using free speech to stifle free speech. This happens when "free speech" creates such a cacophony as to disrupt communication and even purpose.
That, however, is more subtle than our moment requires.
†
This morning, the former President of the United States, Donald J. Trump, released a statement demanding that the 2020 election be thrown out or done over. And while some might focus, as on the idea of reinstating Trump as president, the more important point is the part about "the termination of all rules, regulations, and articles, even those found in the Constitution"
(qtd. in Filipkowski↱).
And there is the suicide pact: Because Donald Trump, who wishes to be the executive sworn to preserve, protect, and defend the Constitution, now demands it be terminated.
Some measure of the conservative condition can be found therein; as election-denial rhetoric among surrogate and advocates spins through, we can observe how conservatives react to the idea of terminating the Constitution so that Donald Trump can be president.
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Notes:
¹ The relic from that is a small black and white advisory mark, warning of explicit material.
² Local scale, and long story short: There is a thread, here, in Comparative Religion, that I never answered, because I was three quarters of the way through a seemingly neverending post when I stumbled on a paper covering one part of the subject, and requiring a complete rewrite of the post. And maybe I never got back to that rebuild, but compared to a juxtaposition of two ancient stories as literary archetype, the question of whether or not God exists is irrelevant.
³ The Supreme Court of the United States was authorized in 1789, and first convened in February, 1790. Brailsford is foundational.
@colbertlateshow. "Nobel Peace Prize winner @mariaressa says social media has 'come in and used free speech to stifle free speech.' #Colbert". Twitter. 29 November 2022. Twitter.com. 30 November 2022. https://bit.ly/3FdLf7I
@RonFilipkowski. "Trump this morning calls to be reinstated as president and declared the winner of 2020, or to have a new election immediately." Twitter. 3 December 2022. Twitter.com. 3 December 2022. https://bit.ly/3iulZRD
United States Court of Appeals for the Eleventh Circuit. "Opinion of the Court". Trump v. United States of America. 1 December 2022. DocumentCloud.org. 1 December 2022. https://bit.ly/3Uvunxn