The Constitution Is Not A Suicide Pact

If one’s interpretation of the Constitution leads to the destruction of the Constitution itself and the country that has adopted it, then the interpretation is wrong.

There is a history of such interpretations that weaken the country and reduces its capacity to survive and flourish. We have the old meme that freedom of speech does not mean the right to yell “fire” in a theater, which threatens the very lives of those who are there.

All simple assertions in our Constitution have limits and are not “purely” true in the sense that in application they do not require prudence both in interpretation and application. For instance, the right to life does not, cannot, mean eradication of capital punishment. If fact, the right to life entails capital punishment, taking that right which applies to all away from some. The right to life cannot mean the right to kill.

So this model applies to border security. Asylum and refugee status are within the purview of our Constitutional order. In order to facilitate this process requires the setting up of courts, facilities, and administrative bureaucracies. In the past the large numbers of people rushing the border has broken down the system to the point where proper oversight was not provided and illegal immigrants were admitted to the country and then lost to the court system.

It has now become a technique to rush the borders with such numbers to overwhelm judicial resources and gain entrance merely be the inability to fairly apply law. To rule in such a way that these immigrants have a right to be in the country because they could not be processed or to that the US must provide resources for immigration that are an extreme financial and judicial burden is in both cases the wearing away of our constitutional order and the public welfare.

It is prudential at such times to close down the borders under the principle that the Constitution is not a suicide pact. Here I refer to Aristotle’s Golden Mean – to balance out competing interests with prudence. Those who demand that we follow the Constitution in such a way that the country following it will cease to exist as a constitutional republic must necessarily be wrong in their interpretation of the Constitution.

U.S. Supreme Court Justice Robert H. Jackson was the first to use the “suicide pact” language specifically, in his dissent in the 1949 case Terminiello v. Chicago, in which the majority ruled that a Chicago city ordinance banning speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” violated the First and Fourteenth Amendments to the Constitution. Dissenting, Justice Jackson wrote: “This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. 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.”

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