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Why It Is Actually Pro-, not Anti-, Civil Liberties


Tuesday, Jan. 07, 2003

We live in a time when citizens - and indeed, even constitutional lawyers - are ready to compromise constitutional guarantees for the sake of increased security, whether real or imagined. Those who argue that we must be flexible in times of danger often mouth the slogan, "The Constitution is not a suicide pact." By that, they mean that civil liberties only go so far, and at extremes, security must take precedence.

This supposed kernel of wisdom has become part of the post-9-11 orthodoxy. But a closer look at the slogan's use in judicial opinions, over time, shows that it hardly supports the anti-civil-liberties positions for which it is now so often cited.

Indeed, over the course of history, the rhetoric of "suicide pacts" has far more frequently been invoked in the course of arguments for protecting constitutional rights - not arguments for sacrificing them to security concerns.

The Genesis and History of the "Suicide Pact" Slogan

Justice Robert Jackson was the first to use the phrase "suicide pact" - in his dissent in the 1949 case of Terminiello v. Chicago. His initial usage was also, to my knowledge, the first and only anti-civil liberties judicial usage of the maxim.

In Terminiello, the Supreme Court upheld the free speech rights of a right-wing hatemonger. In Jackson's dissent, he suggested that the inflammatory speech was likely to produce a violent reaction from the mob outside. Jackson had just been a prosecutor in Nuremberg. And he was fearful that the kind of fascistic acts he had just prosecuted might become commonplace in the United States. He worried about an American version of the Weimar complex: If we do not crack down on Hitlerian types, he thought, our fate may be like that of Germany in 1933.

In the 1960's Justice Arthur Goldberg revived the "suicide pact" maxim in Kennedy v. Mendoza-Martinez and Aptheker v. Secretary of State, but for a very different purpose. Goldberg protected the rights of Communists to travel, and of wartime military deserters against loss of their citizenship, at the same time that he gave verbal deference to the tough-minded view that we would never commit national suicide. The result was pro-civil liberties, and the idea was that the initial Constitutional design was wise, and should be followed.

Even since then, the standard usage of the phrase has been to guard the judge's flank against critics anxious about the stability of American democracy - not to kowtow to such critics by sacrificing liberty for security. The phrase is used to explain that Constitutional rights can be upheld without having security catastrophically suffer.

Recent Judicial Uses of the "Suicide Pact" Slogan Are Also Pro-Civil Liberties

This pattern of decrying-suicide-pacts-while-protecting-liberty was recently confirmed again. Late last year, federal district judge Harold Baer used the slogan when he declared unconstitutional a New York prohibition against wearing masks in public places, in the case of Church of the American Knights of the KKK v. Kerik.

The statute at issue was aimed at suppressing demonstrations by the Ku Klux Klan. (Indeed, it was a successor organization to the Klan that objected to the restriction.) Judge Baer held that the statute violated the First Amendment's guarantee of free speech.

He bowed in ritual obeisance to the "suicide-pact" slogan. But he also added this graceful conclusion: "[T]he rational and measured exercise of jurisprudence must be zealously sustained even in time of war, including the war on terrorism."

Compromises for the sake of security might resonate favorably with pundits in the media, but they will not get the same hearing in Judge Baer's courtroom. And his decision shows just how far the suicide pact slogan has come - and how neatly its use has been inverted - since Terminiello. One can imagine Justice Jackson dissenting to Baer's decision too, had he had the opportunity.

Consider, also, the 1999 opinion in Edmond v. Goldsmith by Richard Posner - the prolific author who doubles as Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, in Chicago. There, Judge Posner declared an Indiana "routine roadblock" provision unconstitutional. As he explained, it violated the Fourth Amendment prohibition against unreasonable searches and seizures.

The case was simple: The precedents forbade routine searches aimed at producing evidence of criminal activity, and the "routine roadblock" statute plainly fit the bill. However efficient or reasonable it might be for the Indiana police to conduct their routine roadblock searches, past decisions held that this tactic, under the Constitution, was off limits.

Posner was quick to add that in a real emergency, public safety might require the opposite decision: "The Constitution is not a suicide pact," he emphasized. But he also added, "no such urgency has been shown here." Like Judge Baer, Posner subscribes to the judicial inversion of the phrase - using it as a sop to those with security fears, rather than as a reason to curtail liberty.

Pundits, Unlike Judges, Tend to Use the "Suicide Pact" Slogan to Defeat Civil Liberties

If judges have inverted the "suicide pact" slogan, however, pundit have hewn more closely to Jackson's original meaning. For them, the situation seems always to be so urgent that a compromise with liberty is required.

Rather than being assured that the Constitution was not designed as, and thus will not become, a suicide pact, they are constantly worried that without an immediate crackdown, it will soon morph into just such a pact. Academics invoke "suicide pacts" in the law reviews when they want to demonstrate that they are tough-minded about hypothetical conflicts between liberty and security; editorialists do the same.

Even Posner-as-pundit falls victim to this thinking, though Posner-as-Judge does not. In a forthcoming book, for example, Posner defends Lincoln's suspension of habeas corpus during the Civil War. Indeed, he even hints that it might have been acceptable for Lincoln to suspend the election of 1864, if the military circumstances had required it, simply because "by November 1864 the North was close to victory."

As pundit, Posner advocates "pragmatic" decisionmaking - the balancing of security against liberty - without recognizing that either value has priority. And yet when Posner is sitting as a judge, his strong commitment to the Constitution takes over - despite his desire to appear to be a hard-headed, pragmatic "balancer."

Consider, also, the views of Alan Dershowitz who as the ubiquitous pundit would allow torture to, for instance, find the location of a large and lethal "ticking bomb" (as long as a "torture warrant" were issued first).

Of course, the problem in real life is how one would ever know that the bomb is really ticking, or that torture would produce reliable information to save the endangered persons. Ironically, Dershowitz's "torture warrant" idea may be wiser than he realizes: If judges' past behavior is a proper guide, they would probably conclude, with Judge Posner, that hypothetically, when "the urgency" is established, they might issue a warrant but "no such urgency has been shown here."

Judges Caving to National Security Fears Have Not Relied on the "Suicide Pact" Slogan

To be sure, judges have made some very bad decisions in the name of national security. The most notorious of all, of course, was the Korematsu decision, in which the Supreme Court upheld the criminal conviction of a Japanese-American who refused to obey a military order to evacuate a designated region on the West Coast.

And just last month in the Jose Padilla case, federal district judge Michael Mukasey rendered an anti-civil liberties decision in the war on terrorism. Mukasey upheld the principle of using administrative detention to confine persons - such as Padilla - whom the Executive has designated, with "some evidence," as "enemy combatants" collaborating with terrorist organizations. Until this decision, we had all thought that the executive could not confine citizens simply on grounds of suspected danger.

History has been unkind to the Supreme Court's decision in Korematsu. Few, if any, would be persuaded today that safeguarding the equal rights of Japanese-Americans would have brought us close to national suicide. Similarly, a huge outcry would occur if the government were to create detention camps for Iraqi-Americans now, based on the same reasoning.

We can only hope for a similarly contemptuous historical verdict (or an immediate reversal on appeal) on Judge Mukasey's decision in the Padilla case.It would be a wonderful irony if the decision reversing Mukasey's order, by the U.S. Court of Appeals for the Second Circuit, cited the "suicide pact" metaphor - and if it did, as I have explained, the pro-civil liberties usage would follow the modern norm.

Fortunately, since Jackson's dissent, our judges have been more committed to constitutional principles than the rhetoric of suicide pacts would indicate - and indeed, have turned that rhetoric upon its head. We can only hope that judges will continue to speak of "suicide pacts" as a sign that they desire to uphold civil liberties in the particular case, not destroy them.

George P. Fletcher is Cardozo Professor of Jurisprudence at the Columbia Law School and the author, most recently, of Romantics at War: Glory and Guilt in the Age of Terrorism.

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