Everyone agrees: The Constitution is not a suicide pact.Since Sept. 11, politicians and pundits have repeatedly deployed this famous legal phrase while debating civil liberties in this time of terrorism. But not everyone agrees who deserves credit for originating the locution.
Jonathan Alter attributed the expression to "Chief Justice" Robert Jackson in a Newsweek piece that advocated the use of torture—"psychological torture" to "jump-start" the 9/11 investigation. At a Judiciary Committee hearing, Sen. Jeff Sessions, R-Ala., tagged Justice Arthur Goldberg as the author when he used the formulation to support Attorney General John Ashcroft.
In an op-ed article, Rep. Jim Talent, R-Mo., used the suicide-pact rejoinder to defend President Bush's proposed use of military tribunals, citing Chief Justice John Marshall as the source. Noted attorney Floyd Abrams quoted Jackson. Jeffrey Smith, a former CIA general counsel, quoted Goldberg. Who's right, and who's misciting?
Depending on how you slice your legal cheese, either Jackson or Goldberg can be cited as the originator. (Rep. Talent is wrong in attributing the phrase to Marshall.) Here's the back story.
In 1949, Justice Jackson (he was not the chief justice) finished a fiery dissenting opinion in Terminiello v. City of Chicago (1949) with these words: "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."
In the case, a fellow named Terminiello, who claimed to be a Catholic priest, gave a hate-filled public speech blasting "Communistic Zionist Jews, FDR, Queen Eleanor" Roosevelt ("one of the world's communists") and others. Protesters demonstrated against him, violence broke out, and Terminiello was charged with disorderly conduct. At the trial, the judge told the jury Terminiello could be found guilty if the jury concluded his speech brought about a condition of unrest.
Terminiello was convicted and appealed. The Supreme Court eventually ruled for Terminiello in a 5-4 decision, saying the judge's instruction had infringed upon the defendant's right of free speech. In his dissent, Jackson insisted that Terminiello's agitprop had gone beyond the bounds of protected speech and the state had the right to lock him up. Jackson's point was Ashcroft's point: Extremism in the name of civil liberties could lead to the destruction of the nation.
Then, 14 years later in Kennedy v. Mendoza-Martinez(1963), Justice Goldberg wrote, "[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact."
The legal question in Kennedy was quite different than in Terminiello, as was Goldberg's use of the phrase. The court was considering the constitutionality of a law that allowed the government to remove the citizenship of someone who departed the United States to evade the military draft. In the majority opinion, written by Goldberg, the Supreme Court ruled the law invalid because it imposed punishment without procedural safeguards. Goldberg, a leading liberal, raised the suicide-pact point in recognizing that the Constitution indeed granted Congress "broad and far-reaching" powers to require military service. Still, he asserted, those powers were limited and did not allow the government to yank citizenship as a penalty for draft-dodging without due process. In fact, Goldberg noted it is in times of emergency—such as during war—that it is most necessary to safeguard procedural due process, for this is when "there is the greatest temptation to dispense with fundamental constitutional guarantees."
Goldberg might have been somewhat sensitive to the phrase. Thirteen years earlier, in 1950, he was a lawyer involved in a landmark case, Communications Assn. v. Douds. At issue was whether the federal government could compel union officials to declare they were not affiliated with the Communist Party and did not believe in the violent overthrow of the U.S. government. Goldberg was then a lawyer representing parties challenging the law on various grounds, including that it violated free speech. The court upheld the law, and Chief Justice Vinson, writing the majority opinion, approvingly cited Jackson's "suicide pact" argument. (In an odd twist, Jackson dissented in that case when it came to the provision requiring union officials to disavow a belief in the overthrow of the U.S. government. That, Jackson believed, was a violation of free speech.)
So those who use the Constitution-ain't-no-suicide-pact line these days probably should stick with the Jackson citation. They are not quoting him verbatim, but they are in sync with the spirit of his words—though, as Communications Assn. v. Douds shows, he would only go so far. Those who cite Goldberg, be advised. He certainly desired no suicide pact. But he also did not want the suicide pact argument to be used as a cover for the violation of civil liberties.