Morality and the Constitution as a Suicide Pact

by Kit Lange on January 24, 2014

Associate Supreme Court Justice Robert Jackson, in a dissenting opinion in Terminiello v. City of Chicago in 1949, coined the phrase “The Constitution is not a suicide pact.”   The saying is a paraphrase of what he actually said, but fourteen years later in Kennedy v. Mendoza-Martinez, Goldberg wrote pretty much the same thing.

What does that even mean?  It’s a catchphrase bandied about by the Left; David Corn wrote for Slate in 2011 that “Extremism in the name of civil liberties could lead to the destruction of the nation.”  It sounds so noble, this assertion that sometimes, the government must—unwillingly, of course—step in and regulate or even take away civil liberties in order to mitigate a threat.  What constitutes a threat is determined by the same Government that stands to benefit from the control exerted.  It’s to keep you safe, we’re told.   The Constitution, according to this school of thought, is a great document to be followed, until the government decides that it should not be followed.  You have rights…until you don’t.

We are no stranger to this erosion.  It started long ago, and just like water can carve out rock, the relentless and inherent conflict between the government and the governed has managed to corral our society into a morally bankrupt caricature of the beautiful framework that the Founders provided us with.  “Morality can’t be legislated,” claim the relativists, yet the Constitution’s entire raison d’être is exactly that: legislated morality, through due process.   Peter Brandon Bayer writes that “America’s validation stems from the morality of the Constitution and how steadfastly we maintain it.”  It is why we talk about taking the high road in our dealings with both our friends and our enemies.  It is why we have men and women who lay down their lives for people they have never met.

The Constitution is more than the core of our law.  It is the core of our conscience, the measuring stick of our society.  It is the litmus test of our freedom.  Without the morality imbued in its pages, America is lost.  The government’s main function—its only real function—is to provide justice, to protect its citizens from invasion, from injustice.  This means that we must adhere to that morality, to that justice, at all costs.  As Immanuel Kant wrote, “Let justice be done even if the world should perish.”

What happens when there is no justice in the government that only exists to provide it?  What happens when injustice becomes commonplace, wielded against the governed?  The entire contract of the Constitution is based upon a very clear and basic premise.  It is We the People saying, “This is what we expect of our government.  This is what you can do, and what you cannot do.  In return, we agree to abide by rules of conduct borne of natural law, to provide you with elected representatives and participate in the process.  If you the government, however, should overreach your authority or abuse the trust that We the People have placed in you, we have several avenues of recourse, and we pledge that we will use them.”

The last of those avenues is so terrible, so horrifying, that no man wishes it.  It is a bitter cup, to be tasted only after much soul-searching, after every other option has been tried and tried again.  Its mere mention serves to divide those who claim the title of patriot into two groups: those who would run, and those who would stand.

It is easy to see those who fall into the first group.  They are caught up in labels and political parties.  They love the luncheons and the speakers and the busyness of it all.  They’re involved.  They are the ones who think the Second Amendment was created for hunting.  They shrug at the idea of every thought and deed catalogued by the government, for they are either too lazy to stop it or too afraid to try.  They denigrate those who refuse to vote for yet another awful choice.  They demand that we let go of our moral compass for the sake of “tolerance” and “including everyone in the big tent.” Some of them find reasons and rationale for their inaction, always managing to find a way to justify doing nothing.

They are pathetic, and they are cowards.

Nothing but wheat to be ground in the ever-turning mill of tyrannical control, they are the ones who will sell out their neighbor for food, trade their guns for a promise of safety from the government that enslaves them.  They are, as John Stewart Mill wrote, “miserable creatures who have no chance of being free unless made and kept so by the exertions of better men than themselves.”

Who are the better men (and women)?  They are warriors.  They are sheepdogs.

They are ever steadfast, ever vigilant.  They are watching, waiting, preparing.  They are the ones who teach their children that being an American is so much more than being born within a certain set of borders.  They are the ones who possess that sense of knowing, way down deep in their core, that there are things worth fighting for, worth suffering for…worth dying for.  For them, freedom is not an abstract currency to be traded in because of fear.  It is to be protected and defended at all costs, even if it means that they are not personally alive to enjoy it later. In fact, that is the piece of it all that truly defines the members of this group: they are willing to sacrifice themselves so that others may live free.   I am simultaneously proud and humbled to be a part of them; proud because we have such a beautiful, noble legacy, and humbled because I can only hope to conduct myself as honorably and bravely as those who bought my own freedom.

The Constitution is not just a piece of paper to us.  It is a sacred, solemn pledge that we made to ourselves and to the government we created.  It is everything our nation has ever been and was designed to be.  Without it we fail, both as a country and as an idea.  This means that once we have exhausted the other means of redress, once we have ascertained that tyranny is present and growing, once we have realized in our heart of hearts that there is no other way…there is only one course of action left to take.  We accept both the action and the consequences, because we understand what the Constitution truly is.  We close our eyes and pray that the day never comes where we must take our place on the line, but we prepare for it with a resolute heart because we see it approaching.  It is our duty, our birthright.

The Constitution, as Bayer wrote, is a suicide pact.  It is an agreement made by the Founders of this nation that We the People will never allow tyranny in our land—not now, not here, not ever.  It is a promise made in blood that we will stand against the evil that constantly threatens our freedom.  When we hear people like Dianne Feinstein or Barack Obama speak so glibly about taking our freedoms ‘for safety’s sake,’ we understand the dangerous intents that lurk in their words.   We do not seek combat, or glory, nor do we seek a martyr’s death.  The American fighting men in the Tomb of the Unknowns did not demand recognition, and neither do we.  All we demand, in fact, is liberty.

The Founders pledged their “lives, fortunes, and sacred honor” to protect and defend the principles of liberty, and the morality that must by necessity be present within it.  They honored their pledge, though it spilled their blood.  We are their sons and daughters; we must honor ours.

Let justice be done, even if we perish.

——-

 

[Note: The idea of the Constitution as a suicide pact is not my own; Peter Brandon Bayer’s excellent paper entitled “Sacrifice and Sacred Honor: Why the Constitution is a Suicide Pact” explains the above concepts in depth, as well as some of the philosophy behind them.  Please take the time to read the complete work; it is well worth your time.]

{ 12 comments… read them below or add one }

Deebow January 24, 2014 at 10:33 am

“I must study politics and war that my sons may have liberty to study mathematics and philosophy. ”

You, young lady, have written perhaps one of the greatest pieces of literature on what our Constitution is. I am honored to have let it grace my eyes and brain. I would not want to live in a world without our Constitution, it is the light to the world. It is Lady Liberty and her torch lighting the way in the darkness of an unenlightened world. There is a reason that EVERYONE in the entire world wants to come here. There is a reason why every oppressed people look to America when they face tyranny.

And that is why my studies go on. For the sake of my sons who must live in this world after me.

“When Injustice Becomes Law, Then Rebellion Becomes Duty.”

God Help Us All if we have to drink from that bitter cup….

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Recovering Lutheran January 24, 2014 at 10:54 am

David Corn wrote for Slate in 2011 that “Extremism in the name of civil liberties could lead to the destruction of the nation.”

Hmmm. I seem to recall progressives calling for the assassination of George Bush just a few years ago in movies and books, which at the time was defended as a valid free speech. I also seem to recall that progressives assured us that dissent is the “highest form of patriotism” when Senator Durbin compared American troops to Nazis and Communists, or when Senator Patty Murray called Osama bin Laden a hero. And more recently the call by some journalists to torture and murder people who do not support gun control was defended as civil and proper political discourse. Nothing was too extreme back then.

But now? Progressives like Corn views civil liberties the same way Kim Jong-un and Andrew Cuomo do – as a threat. The existence of civil liberties – no matter how small and contracted by the relentless expansion of the State – is “extreme” if it in any way contradicts what our self-anointed moral and intellectual betters believe.

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Ruthie January 24, 2014 at 12:00 pm

Bravo! Will you run for President? This is beautiful and you always make me cry.

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Jodi January 24, 2014 at 12:51 pm

Double Bravo. I’m imagining you standing before every American citizen repeating these words, after you’ve been inaugurated. Absolutely beautiful. And I know your words are genuine.

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John Plunkett January 24, 2014 at 12:36 pm

Wow, I am more than impressed! This is one of the finest writings I have read. Thank you!

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GWB January 24, 2014 at 1:33 pm

“Morality can’t be legislated,” claim the relativists, yet the Constitution’s entire raison d’être is exactly that

I still have to read the whole thing (no time at the moment), but this phrase leapt out at me. Because in one sense, you have it exactly backward – it isn’t the Constitution’s reason for being to legislate morality, but it insists that morality must exist or else the Constitution is without any real force.

I’m sure you’ll hit that point or its tangents, but I wanted to toss this out there before I have to go do other things (then return here).

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Kit Lange January 24, 2014 at 3:50 pm

You just contradicted yourself. Morality must exist. The Constitution offers a way to enforce that morality through due process.

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GWB January 24, 2014 at 5:55 pm

I have now read the whole thing, and I will complement you, again, on your vision and your prose.

What I find to be the trouble is placing morality into the Constitution. I don’t believe it is there, if you mean those things in the Natural Law that form the conscience of Man and provide curbs to our behavior that enable civilization. The Constitution does not address the people in that way. It addresses the government and provides a set of rules that are not a curb on behavior, but a system – a mechanism – to limit the consequences of the inevitable behavior.

The difference is between a speed limit sign on a dangerous curve and airbags in a car. (Yes, speed limits have little to do with morality, but this is a metaphor.) The speed limit is a curb to behavior, the airbags are there because someone will eventually lose control and crash on that curve.

The Constitution assumes a morality already in existence – the aforementioned Natural Law. It assumes that most people will accept and mostly try to follow that Natural Law. It assumes a people that will not abide bribery, for example. It provides a mechanism for removing a President who commits such an act while in office. The mechanism is a recognition of the inherent flaw of man, and vests the power for removal in a separate branch of government in order to limit the possible consequences of flawed men seeking power.

If, by “morality”, you mean the recognition of freedoms inherent to Man embodied in the Bill Of Rights, then you are closer, but still not quite there. Again, the Bill Of Rights is merely an acknowledgement of the morality that is assumed, and a mechanism to limit the government’s ability to impair or abridge those freedoms.

The Constitution offers a way to enforce that morality through due process.

I would turn that around. The insistence on due process is an acknowledgement of the necessary morality, and that the government must provide the associated mechanism.

I think one difference between our views (and what is an assumption in what I have written above) is that my worldview says that a government is not a moral agent. The individuals within it are moral agents. Morality can only be a factor for a moral agent. A government can be just or unjust but it cannot be moral or immoral. So, the Constitution provides a mechanism for a moral people to govern themselves justly. To paraphrase Adams, once the morality ebbs from the people, the Constitution is nothing more than a piece of parchment with a bunch of really interesting ideas on it.

The Founders pledged their “lives, fortunes, and sacred honor” to protect and defend the principles of liberty, and the morality that must by necessity be present within it.

I would say that the morality must be present not within the liberty, but underneath it, underpinning it and supporting it. You can have morality without liberty, but you cannot have liberty without morality.

I count this as splitting hairs, Kit. It is not a critique of your point, but of your wording. Iron sharpening iron, as it were. Again, I applaud you for your vision and for your prose in this post.

As always, for Liberty!

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Kit Lange January 24, 2014 at 11:58 pm

I always welcome your feedback. You know that. :)

As for the morality in question, I think we are splitting hairs, as you put it. You make the point that a government cannot be moral or immoral, only just or unjust. I posit that justice is simply the application of a standard of morality to society at large. In that sense, then, government CAN be moral or immoral, in that it applies the morality standard in the form of justice, using due process.

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AW1 Tim January 24, 2014 at 6:52 pm

I am a disabled veteran. I say that not to gain recognition, but to amplify what follows.

I will live the rest of my life with pain and mobility issues, however I am here. I have a family, and I can provide for them. I know folks who didn’t get that opportunity. It is for their sake that I have tried to teach my children that they should work every day to live their own lives in a manner worthy of that sacrifice. My friends gave their tomorrow for our today, and we must needs always remember that.

This is why protecting our Constitution, and our Republic, is so damned important. We swore an oath to protect and defend that Constitution, and no one relieved us of that obligation upon leaving the service. I consider myself bound by that oath as much today as when I was on active duty.

Having said that, the other point that MUST be constantly made is that the Bill of Rights is NOT a list of those rights granted to us by the Constitution. rather, it is but a partial listing of those rights given to us by our Creator, and over which any government has no control, or seeks to infringe at it’s own peril. Those rights exist, and would still exist whether this or any other government was in place, because they ARE our rights. they are basic human rights and belong to each and every one of us.

I have taught my kids that the Bill of Rights should be considered as a restraining order against the government, a partial list of things that they must stay away from.

That we have allowed the government to transgress upon us through the repression of those rights is to our shame, and must be rectified sooner, rather than later.

Thanks for this excellent article. I’m making a copy of it to give to my youngest daughter.

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Jodi January 24, 2014 at 8:03 pm

“To paraphrase Adams, once the morality ebbs from the people, the Constitution is nothing more than a piece of parchment with a bunch of really interesting ideas on it.”

Which, if I read you correctly, explains the motivation for the push, mostly from the Far Left, to eliminate morality, and with it, liberty.

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My2SonsAreMarines January 29, 2014 at 8:45 am

Jodi, you are absolutely correct to connect leftist attempts to destroy American morality:

What you quote from is a message John Adams delivered to the Officers of the First Brigade of the Third Division of the Militia of Massacusetts on October 11, 1798:

“”Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

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