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politics
The "Suicide Pact" Mystery
Who coined the phrase? Justice Goldberg or Justice Jackson?
By David Corn
Posted Friday, January 4, 2002, at 8:04 AM PT
Everyone agrees: The Constitution is not a suicide pact. Since Sept.
11, politicians and pundits have repeatedly deployed this famous
legal phrase while debating civil liberties in this time of
terrorism. But not everyone agrees who deserves credit for
originating the locution.
Jonathan Alter attributed the expression to "Chief Justice" Robert
Jackson in a Newsweek piece that advocated the use of
torture�"psychological torture" to "jump-start" the 9/11
investigation. At a Judiciary Committee hearing, Sen. Jeff Sessions,
R-Ala., tagged Justice Arthur Goldberg as the author when he used the
formulation to support Attorney General John Ashcroft.
In an op-ed article, Rep. Jim Talent, R-Mo., used the suicide-pact rejoinder to defend
President Bush's proposed use of military tribunals, citing Chief Justice John
Marshall as the source. Noted attorney Floyd Abrams quo
ted Jackson. Jeffrey Smith, a former CIA general counsel, quoted Goldberg. Who's
right, and who's misciting?
Depending on how you slice your legal cheese, either Jackson or Goldberg can be cited
as the originator. (Rep. Talent is wrong in attributing the phrase to Marshall.)
Here's the back story.
In 1949, Justice Jackson (he was not the chief justice) finished a fiery dissenting
opinion in Terminiello v. City of Chicago (1949) with these words: "There is danger
that, if the court does not temper its doctrinaire lo
gic with a little practical wisdom, it will convert the constitutional Bill of Rights
into a suicide pact."
In the case, a fellow named Terminiello, who claimed to be a Catholic priest, gave a
hate- filled public speech blasting "Communistic Zionist Jews, FDR, Queen Eleanor"
Roosevelt ("one of the world's communists") and other
s. Protesters demonstrated against him, violence broke out, and Terminiello was
charged with disorderly conduct. At the trial, the judge told the jury Terminiello
could be found guilty if the jury concluded his speech bro
ught about a condition of unrest.
Terminiello was convicted and appealed. The Supreme Court eventually ruled for
Terminiello in a 5-4 decision, saying the judge's instruction had infringed upon the
defendant's right of free speech. In his dissent, Jackson
insisted that Terminiello's agitprop had gone beyond the bounds of protected speech
and the state had the right to lock him up. Jackson's point was Ashcroft's point:
Extremism in the name of civil liberties could lead to
the destruction of the nation.
Then, 14 years later in Kennedy v. Mendoza-Martinez (1963), Justice Goldberg wrote,
"[W]hile the Constitution protects against invasions of individual rights, it is not a
suicide pact."
The legal question in Kennedy was quite different than in Terminiello, as was
Goldberg's use of the phrase. The court was considering the constitutionality of a law
that allowed the government to remove the citizenship of
someone who departed the United States to evade the military draft. In the majority
opinion, written by Goldberg, the Supreme Court ruled the law invalid because it
imposed punishment without procedural safeguards. Goldb
erg, a leading liberal, raised the suicide-pact point in recognizing that the
Constitution indeed granted Congress "broad and far-reaching" powers to require
military service. Still, he asserted, those powers were limited
and did not allow the government to yank citizenship as a penalty for draft-dodging
without due process. In fact, Goldberg noted it is in times of emergency�such as
during war�that it is most necessary to safeguard proce
dural due process, for this is when "there is the greatest temptation to dispense with
fundamental constitutional guarantees."
Goldberg might have been somewhat sensitive to the phrase. Thirteen years earlier, in
1950, he was a lawyer involved in a landmark case, Communications Assn. v. Douds. At
issue was whether the federal government could com
pel union officials to declare they were not affiliated with the Communist Party and
did not believe in the violent overthrow of the U.S. government. Goldberg was then a
lawyer representing parties challenging the law on
various grounds, including that it violated free speech. The court
upheld the law, and Chief Justice Vinson, writing the majority
opinion, approvingly cited Jackson's "suicide pact" argument. (In an
odd twist, Jackson dissented in that case when it came to the
provision requiring union officials to disavow a belief in the
overthrow of the U.S. government. That, Jackson believed, was a
violation of free speech.)
So those who use the Constitution-ain't-no-suicide-pact line these
days probably should stick with the Jackson citation. They are not
quoting him verbatim, but they are in sync with the spirit of his
words�though, as Communications Assn. v. Douds shows, he would only
go so far. Those who cite Goldberg, be advised. He certainly desired
no suicide pact. But he also did not want the suicide pact argument
to be used as a cover for the violation of civil liberties.
End<{{{
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