Over in the Presidential Pardons Improved thread in Politics & Elections, @BobLibDem said:
to which I responded:
I see this comment from time to time; however, I do not think I have ever seen something that really supports the assertion. Am I mistaken?
So, the Great Debate here is: Is the constitution of the United States currently a suicide pact or has it ever been so?
Three independent branches of government (with one of those divided into two autonomous parts) compounded by a relationship with semi-autonomous states has certainly made it seem like a suicide pact at times. Consider that one of the points of the Civil War was whether the states could even leave the union.
It works, has worked, and with goodwill will work again, pretty successfully, because the guys elected to the governments (all sides) have wanted the government to work as best possible. Which by necessity means pragmatism, co-operation and compromise.
Without that glue, it all becomes unglued.
When the US military imposed a constitution on Japan in the aftermath of WWII (taking barely a week to draft it) it was a parliamentary system that was chosen.
Those countries who have adapted the US model of governance fall with distressing regularity and rapidity to coups and military strongmen.
When one half of the government doesn’t think there should be a government and that the balance of power is retained by a faction whose mindset is that any consideration of working with the “other side” is an anathema then you have an existential threat.
I have always viewed the “suicide pact” comment as directed not at the constitution itself, but at the constitutional amendment process.
The only way to amend the constitution even a teensy-weensy little bit is to open it up for essentially unlimited amendment. And given a polarized society, it’s likely the Other Side will propose / impose a LOT of changes Your Side will hate.
IOW, you can only get what new stuff you want by letting the other guys gut most of the old stuff that you value. And you’ll do the same to them.
For non-Americans, the quasi-religious reverence to the Constitution seems odd. It’s just an agreement on a way to run a society. But you sometimes get the sense that even if 100% of people agreed that some part of it made no sense in the modern world and should be changed, it still wouldn’t happen. That if an asteroid were headed to destroy Earth but the Constitution for some arcane technical reason forbade the military from using their resources to deflect the asteroid and save humanity, we’d spend several months appealing it to the Supreme Court, and if that failed then people would just shrug and accept their impending doom. What are you going to do, it’s the Constitution.
“It’s my Constitutional right” may be a fact, but it’s not an argument. It’s an evasion. What are the merits? If there is no merit, it should not be in the Constitution.
You need something else for it to work: shared interests.
If everyone born on an odd-numbered date had been designated a slave for life (along with all their descendents), regardless of race, slavery wouldn’t have lasted as long as it did.
Compromise and cooperation are less likely when entrenched interests don’t benefit.
The expression has historically been used (generally in dissent) for the proposition that constitutional rights must give way in the fact of national emergency or public exigency. As the Court put it in Kennedy v. Mendoza-Martinez: “while the Constitution protects against invasions of individual rights, it is not a suicide pact”
While I understand that it was sometimes attributed to Lincoln (re: the right to habeas corpus), I asscoiate it with Justice Jackson’s dissent in Terminiello (arguing in favor of restrictions on free speech) and it was acknowledged (although rather in dicta) by the Court’s majority in Kennedy (while holding that draft evaders could not be stripped of citizenship without due process). The concept, pretty clearly, guided the Court’s opinion in Korematsu (and particular Frankfurter’s concurrence).
All of which is to say that, despite this pretty established history, I’m not sure how the expression is being used here.
There’s a Wikipedia article on the history of the expression.
I recall recent use of the expression with regard to COVIDiots who claimed they had a Constitutional right to ignore public health measures, e.g.:
Considering that there wouldn’t have been any free citizens left after a generation or two, I’d say so!
I’ve never quite gotten this sentiment. Other countries have constitutions. Do they not hold theirs in high regard? If they don’t, then the constitution has absolutely no value as a foundational basis for a society. What’s the good middle ground with a national constitution between “well, it doesn’t SAY I can’t rig the creation of borders so my party never loses” and “that pesky First Amendment doesn’t have much relevance to today’s society”?
(I get the feeling I may not be expressing myself accurately; may try again later.)
I think the phrase is nonsense, and applying it to the difficulty of amending it even worse.
When was the last substantial amendment to the constitution, meaning a true change to the social fabric? Lowering the voting age to 18 in 1971? A mere bump. Eliminating the poll tax in 1964? A significant statement, but hasn’t stopped states from finding other ways to limit voting. Prohibition or its end? I’d put it back at Women’s Suffrage in 1920.
How much has the country changed in the past century? Enormously. The country changes whether or not the Constitution does. Laws, the judiciary, the presidency, the economy, the demographics, the social climate, technology, foreign events, everything changes constantly. What realistic amendments to the Constitution would have more than symbolic effect on those?
The Constitution is a framework. With a few major exceptions, we’ve gone from a set of loosely affiliated farm-based colonies to the world’s technological and economic superpower under exactly the same framework since the Bill of Rights was passed. Maybe even before, since the framers thought those rights to be too obvious to need writing down.
In that time, the U.S, went from 13 to 50 states, from 4 to 330 million people, from a federal system that barely existed to one of hundreds of thousands of pages of laws. We’ve coped with almost every conceivable catastrophe. To be sure, we’ve tossed the Constitution aside every time we’re gotten into a major war, but somehow pledged our troth to it immediately afterward.
The Constitution is a mythology, not a barrier or a bulwark. It’s barely a scaffolding. Like our money, it has exactly as much value as collective opinion gives it. We can do anything we want under it and not do everything we want if the right people object. It’s always been thus, since the first day.
I’m not being optimistic. I’m never optimistic. I do try to be realistic, and my reality is that using the Constitution as the reason for not getting your way is simply an excuse to deny reality.
I’m puzzled - you say you think the phrase is nonsense, but the conclusion of your post seems to be exactly what the phrase speaks to. For example, people claiming that they have a Constitutional right to defy public health measures like a mask mandate in a pandemic.
The thing is that Americans seem to have cause and effect backwards. A Constitution should be held in high regard because its contents have merit. Americans seem to think that things have merit simply by virtue of being in the Constitution.
My observation is that this is mostly talked about with the Bill of Rights (and a few other amendments), which are treated more like the Universal Declaration of Human Rights–which was in fact based in part on the Bill of Rights.
Rights by their nature are things that people don’t think should be able to be taken away.
Australia has a nifty little Constitution (url provided for any of the Aussies on the board who are unsure on the matter) and is notably devoid of a Bill of Rights, mention of the position of Prime Minister or that the British Monarch is our Head of State.
For the bulk of people, on the bulk of days it doesn’t intrude into the day-to-day affairs.
We can amend it, and do periodically, but not without (due) difficulty. The last time was in 1977
The question posed at the referendum was : It is proposed to alter the Constitution to ensure as far as practicable that a casual vacancy in the Senate is filled by a person of the same political party as the Senator chosen by the people and for the balance of his term.
Do you approve of the proposed law?
Great moments in the progress of civil liberties for a democratically governed people, it wasn’t.
The average Australian couldn’t tell you how many Justices there are on the Australian High Court, let alone name one.
But I’d go into the trenches to dispute any claim that due to this lack of familiarity the Australian Constitution has absolutely no value as a foundational basis for the Australian society. As can be determined by the impact of those who disregard the document.
That’s something I’m curious about.
I would suggest that the seeming veneration of the US Constitution was the use of the constitution and the courts (particularly since the 14th Amendment and the incorporation doctrine) to effectively impose certain rights and liberties that had not been adopted (and perhaps could not be adopted) through the democratic process. Most of us would agree that many of these were objectively good; and many people who complain about the excessive focus on the bill of rights loved it when it was resulting in decisions that they approved of (and vice versa).
My sense is that the expansion (and contraction) of these rights and liberties in other countries generally derive out of the legislative process. Is that right? I would suggest that that would play a significant role in the difference perception.
I’m sure it’s used both ways, but the way I have more often seen it used, and used it myself, is that the Constitution is not a suicide pact.
Sometimes, something may come along and do a great deal of harm, and we have people defend that harm as it is what the Constitution says must happen. They say that that harm is less harmful than throwing out the rule of law and descending into anarchy, as though that is the only option.
So, the implication that is given by those who defend less than ideal outcomes that are dictated by following the Constitution is that it is a suicide pact, and the retort is meant to make that implication explicit, examine and refute it.
In the example upthread of the Constitution somehow preventing us from saving ourselves from an extinction level asteroid, that would be a time that we shouldn’t shrug and say, “What can you do?” but instead should act in ways to save humanity, even if it does go against the words in a centuries old document.
I’ve got a few issues that come to mind.
First is the Second Amendment, which has been done to death on these boards before and I won’t dwell on it too much. It started with a fear of standing armies and armed militias serving in their place to the point where today virtually no gun restrictions whatsoever can be proposed. People die every year because this amendment exists.
Second is this gem in Article V:
Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
We all know that the Constitution may never have been passed without the Great Compromise, but this gives entirely too much power to the smaller states. Even in 1790 it was bad enough when the largest state (Virginia) was 12 times larger than the smallest (Delaware). Now it’s ridiculous- California has about 68 times the population of Wyoming but an equal number of Senators. Or consider this- the residents of Mississippi, Nebraska, Wyoming, Alaska, North Dakota, Idaho, South Dakota, and Kansas total about 12.8 million people and are represented by 16 Republican Senators. California has a population of 39.6 million people and are represented by 2 Democratic Senators. Three times as many people have one eighth the representation in the Senate. This disproportionate power of the smaller states cannot be rectified in any way thanks to the handcuffs slapped on in Article V.
The last is this from Article III:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,
This may have made sense back in the day before the Supreme Court became a political institution. We’re long past that, the Roberts Court is a subsidiary of the Republican Party. A sensible solution would be say 18 year terms with one justice’s term expiring every other year- that would assure that each president gets a couple of nominations (poor Jimmy Carter got zero) and the political impact of each nominee would be lessened. Instead, we’re stuck with turkeys like Kavanaugh and Thomas thanks to the shackles of Article III.
Define holding it in high regard. In other countries, the constitution is a legal framework that says how the government is run. If it needs to change, great, change it. But in the US the constitution is a quasi-religious document. Implying that parts of it are wrong or outdated (see: 2nd amendment) is met with calls of heresy.
And similarly to religious texts, those who hold it the most sacred haven’t actually read most of it.
There are parts of the Constitution that, on the technical face-reading of it, are indeed a suicide pact. But SCOTUS and the courts have always applied practical sense to overrule it.
For instance, the 2nd Amendment - if applied literally - could be taken to meant that private citizens should be allowed to keep nuclear weapons and the government couldn’t prevent them.