When the Bush administration began its aggressive public assault on personal freedoms shortly after 9/11, one of the mantras that its apologists began using was a popularly distorted one-liner from a dissent in a 1949 U.S. Supreme Court decision known as Terminiello v. Chicago. The one-liner has been variously articulated but most often is stated, “The Constitution is not a suicide pact.”
I am mocking those who misuse this statement by incorporating the most incendiary of its words into the title of this book. I intend the phrase “suicide pact” to mean that a Constitution which permits the government to violate it and the president to do so secretly and with impunity is a suicide pact with the states that formed it and the American people whose freedoms it was intended to secure because it will result in such a loss of liberty that it will bring about the self-immolation of our formerly free society—its suicide, if you will. But those who use it in defense of what this book attacks surely have another meaning in mind.
Here is how the statement that the apologists for big government misuse came about.
On February 7th 1946, Fr. Arthur Terminiello, a Roman Catholic priest who was a fierce opponent of communism and of the Truman administration’s treatment of it, gave an incendiary speech in a hall in Chicago, which the sponsors of the speech had rented for that purpose. The sponsors obtained the required permits from the Chicago police.
The speech utterly delighted Fr. Terminiello’s supporters and profoundly antagonized his opponents. The opponents numbered about sixteen hundred persons, and the supporters about half that number.
When it became apparent that violence might break out, the Chicago police asked Fr. Terminiello to stop speaking and depart the speech venue. When he disregarded their wishes, they arrested him and charged him with breach of the peace. That charge was defined in Chicago in the late 1940s to mean any behavior that stirs the public to anger or invites dispute or brings about unrest or creates a disturbance. The police did not arrest any of the rioters who broke windows and stormed the stage from which Fr. Terminiello spoke and who obviously came to silence this priest; only the priest who gave the speech was arrested.
Fr. Terminiello was convicted in a trial court, and that conviction was upheld by an Illinois appellate court and eventually by the Illinois Supreme Court. He appealed to the U.S. Supreme Court, which reversed his conviction. In doing so, it moved the direction of First Amendment jurisprudence closer to where it is today: With the exception of “free-speech zone” nonsense, a near absolute protection for public political speech. It did so by invalidating the Chicago ordinance and recognizing that the values protected by the freedom of speech presume that speech will arouse and annoy. Moreover, the speaker cannot be punished because the loudest gaggle in the audience—which came to the speech in order to become annoyed and then silence the speaker—fully got what it expected.
Four justices dissented, among whom was Justice Robert H. Jackson. Justice Jackson had been one of FDR’s attorneys general and was Truman’s chief prosecutor at the Nuremberg trials. He was also the mentor to a future chief justice, William H. Rehnquist, who was one of his law clerks. Justice Jackson argued that a federal court had no business second-guessing Chicago cops who were trying to prevent a riot. He regretted that the Court used Fr. Terminiello’s hateful speech as an instrument to change First Amendment jurisprudence. His reading of the First Amendment informed him that it does not tolerate violent disruption and does permit punishing or silencing political speech which is likely to lead to violence.
His dissent is powerful but wide of the mark; and no Supreme Court decision has permitted the so-called heckler’s veto—which is what happens when an aroused audience succeeds in silencing a speaker it has come to silence by drowning him out or by successfully demanding his arrest.
Now, back to the title of this book. The last line of Justice Jackson’s dissent is the line the Bush and eventually the Obama apologists persist in misquoting. Justice Jackson lamented that liberty and order are often adversaries, and he yearned for each to accommodate the other, rather than liberty being in the default position.
Justice Jackson obviously rejected the Natural Law and chided his colleagues in the Court’s majority for having upheld it. In the concluding line of his now jurisprudentially disregarded lament, he wrote, “There is a 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.”
There you have it. The final line of a poorly reasoned dissent which in sixty-five years has never become the law, which predicted an outcome that never came to pass, and the proponents of which use to assault the Natural Law ad nauseam and to their own frustration, is ultimately toothless.
If Justice Jackson were still with us, my guess is he’d have no difficulty deciding today which is the greater danger to personal freedom: A priest who harangues a crowd that came to be harangued and a Court that permits it, or presidents who write their own laws and start their own wars, who arrest without charge, torture in defiance of law, spy in defiance of the Constitution, and murder in defiance of the ancient and common understanding of right and wrong.
So, I apologize for turning Justice Jackson’s statement on its head. The reader can decide whether this was done for petty or for profound reasons, or perhaps as a warning—a warning that we are far more likely to collapse as a society from too little freedom than from too much.