The Volokh Conspiracy - Suicide Pacts:

A reader, responding to my post about treason and speech, writes:

If you think the Founders would approve of any test other than 1 or 2, you are nuts. It's a cliche, but its true: The Constitution is not a suicide pact.

I've long been troubled by the one-liner that "The Constitution is not a suicide pact"; let me explain why.

1. If we interpret the "suicide" in "suicide pact" in a strong sense -- the Constitution doesn't require government forbearance where such forbearance would mean the nation's death as a free and independent country -- then the one-liner is probably right. Yes, if some action was genuinely necessary to preserve the nation's very existence as an independent country, I doubt that the Framers contemplated that the government should be blocked from engaging in this action, even if it meant restricting speech, engaging in broad and otherwise forbidden searches and seizures, and the like.

Nor do I think that we should insist that the government remain powerless to do what needs to be done to preserve the country's existence. Let justice be done, I say, but not the point that the heavens fall. (Or perhaps if we let justice be done though the heavens fall, the result isn't really justice.)

2. But the trouble is that the one-liner is generally used about behavior that doesn't really significantly threaten the nation's death as a free and independent country. Axis Sally's speech didn't cause our nation's death or loss of independence; nor would it have seemed likely to do so; nor would the threat of treason prosecutions for such propaganda during World War II have materially increased our chances of national survival.

Yes, Axis-Sally-like speech might have hurt our war effort in some measure, and led to some decline in morale and some extra deaths of our soldiers. It may well have deserved punishment as a result (I think it did). Maybe even all speech that is intended to help the enemy in time of war deserves punishment, as my correspondent writes (though I don't think that such a broad speech restriction would be constitutional). But calling the toleration of such speech a matter of "national suicide" is hyperbole, not a reflection of reality. And I've found that the same is true in most cases where the "not a suicide pact" one-liner is deployed.

What's more, if the claim really is that the Constitution doesn't require government forebearance where such forbearance would cause some loss in warmaking effectiveness, or some threat of death to soldiers or others, I don't think this claim is sound. It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty. They thought that on balance liberty would make the nation more secure, against foreign enemies as well as domestic, but they must surely have realized that many of the amendments (the First, the Second, the Fourth, and others) would sometimes lead to pretty serious harms, including the death of soldiers.

To give just one example, a "peace with honor" Presidential candidacy during a wartime election may well embolden the enemy, prolong the war, and cost American lives. But the Constitution doesn't provide for suspending elections during wartime, and our traditions have in fact allowed such elections, even when they might have lengthened wars.

3. So the real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers. That's a hard and important question (see pp. 97-100 of this article for my one brief attempt to grapple with it in one particular context). But assertions that "The Constitution is not a suicide pact," which usually rest on hyperbole about what constitutes "suicide," do not, I think, advance our thinking about this question.

For an illustration that I get similarly annoyed by some libertarian one-liners as well as conservative ones, see here (criticizing the frequent quotes of Benjamin Franklin's "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety").

	[Eugene Volokh, August 18, 2005 at 6:10pm] Trackbacks Suicide Pacts: A reader, responding to my post about treason and speech, writes: If you think the Founders would approve of any test other than 1 or 2, you are nuts. It's a cliche, but its true: The Constitution is not a suicide pact. I've long been troubled by the one-liner that "The Constitution is not a suicide pact"; let me explain why. 1. If we interpret the "suicide" in "suicide pact" in a strong sense -- the Constitution doesn't require government forbearance where such forbearance would mean the nation's death as a free and independent country -- then the one-liner is probably right. Yes, if some action was genuinely necessary to preserve the nation's very existence as an independent country, I doubt that the Framers contemplated that the government should be blocked from engaging in this action, even if it meant restricting speech, engaging in broad and otherwise forbidden searches and seizures, and the like. Nor do I think that we should insist that the government remain powerless to do what needs to be done to preserve the country's existence. Let justice be done, I say, but not the point that the heavens fall. (Or perhaps if we let justice be done though the heavens fall, the result isn't really justice.) 2. But the trouble is that the one-liner is generally used about behavior that doesn't really significantly threaten the nation's death as a free and independent country. Axis Sally's speech didn't cause our nation's death or loss of independence; nor would it have seemed likely to do so; nor would the threat of treason prosecutions for such propaganda during World War II have materially increased our chances of national survival. Yes, Axis-Sally-like speech might have hurt our war effort in some measure, and led to some decline in morale and some extra deaths of our soldiers. It may well have deserved punishment as a result (I think it did). Maybe even all speech that is intended to help the enemy in time of war deserves punishment, as my correspondent writes (though I don't think that such a broad speech restriction would be constitutional). But calling the toleration of such speech a matter of "national suicide" is hyperbole, not a reflection of reality. And I've found that the same is true in most cases where the "not a suicide pact" one-liner is deployed. What's more, if the claim really is that the Constitution doesn't require government forebearance where such forbearance would cause some loss in warmaking effectiveness, or some threat of death to soldiers or others, I don't think this claim is sound. It seems to me that in the Constitution, and especially the Bill of Rights, the Framers deliberately sacrificed some government effectiveness in order to promote liberty. They thought that on balance liberty would make the nation more secure, against foreign enemies as well as domestic, but they must surely have realized that many of the amendments (the First, the Second, the Fourth, and others) would sometimes lead to pretty serious harms, including the death of soldiers. To give just one example, a "peace with honor" Presidential candidacy during a wartime election may well embolden the enemy, prolong the war, and cost American lives. But the Constitution doesn't provide for suspending elections during wartime, and our traditions have in fact allowed such elections, even when they might have lengthened wars. 3. So the real issue is when certain behavior becomes so dangerous that this danger justifies a special constitutional rule that differs from the one used for normal dangers. That's a hard and important question (see pp. 97-100 of this article for my one brief attempt to grapple with it in one particular context). But assertions that "The Constitution is not a suicide pact," which usually rest on hyperbole about what constitutes "suicide," do not, I think, advance our thinking about this question. For an illustration that I get similarly annoyed by some libertarian one-liners as well as conservative ones, see here (criticizing the frequent quotes of Benjamin Franklin's "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety").