Posted by Ilya Somin: What if the the Constitution Turns out to be a Suicide Pact? - A Final Post on Forced Labor and the Constitution: http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190738598
At least for now, this will be my last post on forced labor. I think I have said all I reasonably can say about my arguments on this subject in the blog post format; further argument req. However, I do want to address one more counterargument: the claim that my position that forced labor is unconstitutional might lead to the destruction of all our rights. For example, it is theoretically possible that, absent a draft, we might be conquered by an evil totalitarian enemy who will proceed to abolish the Constitution, violate all our rights, and so on. Even if this is impossible under current conditions, it was a more serious risk in the past (e.g. - during World War II), and may again be in the future. Thus, the critic will conclude, the government must have the power to impose a draft. Otherwise, there is at least some danger that the Constitution will be overthrown by our enemies and all our rights (including the Thirteenth Amendment itself) lost. It is important to recognize that this type of "the Constitution is not a suicide pact" argument is hardly unique to the Thirteenth Amendment/forced labor context. It can be deployed against virtually any constitutional right. For example, it is possible that a situation will arise where, unless the government is able to suppress Communist speech, the Communists (or some other totalitarian group) will win power in an election and then establish a totalitarian state that - you guessed it - will abolish the Constitution and take away all our rights. Sure it's unlikely today, but it was a more serious threat in the past (say, in the 1930s, when various extremist groups enjoyed considerable popularity because of the Great Depression), and the danger might be greater in the future. Indeed, the "suicide pact" formulation was originally deployed in in a First Amendment case, [1]Terminiello v. Chicago. Justice Jackson, the inventor of the phrase, was specifically concerned that "[2]Invocation of constitutional liberties" under the First Amemdment might be used by Nazis or Communists as "part of the strategy for overthrowing them." If we take the "suicide pact" argument to its logical conclusion, we will have to destroy all our constitutional rights in order to save them. Goverment would have to have the discretion to violate those rights at any time it sees fit, because otherwise there is always at least a small chance that the right in question would lead to national suicide. I'm going to assume that this conclusion is unacceptable. But I also agree that it is unacceptable to conclude that a constitutional right can never be violated even if keeping it in place would lead to certain totalitarianism. Therefore, we need to adopt one of two possible compromise options. The first is to admit that there are extreme situations where unconstitutional action is morally defensible even if still illegal. Adherence to the Constitution is an important value, but it is not the only value and it does not always trump all other considerations. However, we don't want to make it easy for government officials to violate constitutional rights on the grounds that doing so is necessary for survival. Thus, officials who take such actions should be forced to run the risk of being impeached or prosecuted for them. If they truly believe that the nation will fall to totalitarianism should they fail to act, they will be willing to risk those consequences (if only because prosecution in a liberal democratic state is a much less unpleasant fate than what will probably happen to those same officials should the totalitarians win). The other alternative is to explicitly incorporate the "suicide pact" argument into our theory of constitutional interpretation. If violating a constitutional right really is necessary for national survival, the government should have to make that case in court and meet a fairly high burden of proof in doing so. Mere assertion of the existence of a risk is not enough (otherwise constitutional rights would quickly be obliterated, since the state would make the assertion anytime officials would find it convenient). I'm not sure which of these two strategies is preferable. There is a substantial and in my view inconclusive academic literature on the subject. But whichever way we go, we should remember that the risk of totalitarian horror is not just on one side of the ledger. Just as protecting constitutional rights might create a risk of national sucide, so to might violating them. If, for example, we let the government impose forced labor, even in limited circumstances, there is a chance (perhaps initially quite) small that the forced labor program will be expanded into a totalitarian state. Ditto for violations of free speech and other rights. The Constitution may not be a suicide pact. But fear of suicide shouldn't blind us to the possibility that the same government that protects us from suicide might itself murder us. References 1. http://en.wikipedia.org/wiki/Terminiello_v._Chicago 2. http://www.bc.edu/bc_org/avp/cas/comm/free_speech/terminiello.html _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
