'The Constitution is not a suicide pact." After 9/11, that old saw -- originally coined by Supreme Court Justice Robert Jackson -- was dusted off. Lately, it's been getting a heavy workout.
On June 12, for instance, the U.S. Supreme Court released a decision authored by Justice Anthony Kennedy holding, in Boumediene vs. Bush, that Guantanamo prisoners have the right to ask the federal courts to rule on the validity of their continued detention (many have been held for years, despite little evidence in some cases that they're truly "unlawful combatants.")
For The Record
Los Angeles Times Tuesday, July 15, 2008 Home Edition Main News Part A Page 17 Editorial pages Desk 1 inches; 37 words Type of Material: Correction
Rights: In her July 3 column about America's founding values, Rosa Brooks stated the number of Colonial deaths in the Revolutionary War extrapolated to today's population would be about 300,000. The correct extrapolation is about 3 million.
Barack Obama praised Kennedy's majority opinion for "re-establishing our credibility as a nation committed to the rule of law," but John McCain denounced it as "one of the worst decisions in the history of this country." The Wall Street Journal's editorialists agreed with McCain and hauled out the usual cliches: "More Americans are likely to die as a result [of this decision]," they opined darkly. "Justice Jackson once famously observed that the Constitution is 'not a suicide pact.' About Anthony Kennedy's Constitution, we're not so sure."
When invoked with the requisite tone of pompous finality, "the Constitution is not a suicide pact" is an effective rhetorical ploy. Who could disagree? Anyway, no one wants to defend suicide pacts. The very phrase sounds like "suicide bomber," thus managing to subtly imply that those who stand up for basic rights are not only self-destructive but share the ideology of terrorists.
But the Constitution also doesn't contain any footnotes that say, "Note to our descendants: This Constitution is intended for easy times only. At the first sign of trouble, feed this document to your dog. We won't mind. We only fought a war for it."
This Fourth of July, celebrate by rereading the Declaration of Independence, created by more or less the same crowd who brought us the Constitution, 11 years and one war later. Remember it? "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness."
Wild stuff! To the founders, "all men" have "unalienable rights" -- not just U.S. citizens in the continental United States. (If the founding fathers were around today, Rush Limbaugh and Rudy Giuliani would pillory them as limp-wristed, latte-drinking, soft-on-terror liberals.)
