Forgive me for elucidating on this famous maxim: "The Constitution is not a suicide pact,”  but there has been some discussion circulating on the web about this expression.

The statement became currency after Justice Robert Jackson's decent in the Terminiello case where race baiters had assembled and began to stir up so much trouble that they were shut down.  This of course gave rise to a First Amendment Free Speech question.  Jackson had been the United States Prosecutor in the famous Nuremburg Trials.  He had left the court temporarily at the request of the President to prosecute Reich Marshal Herman Goering among other nefarious Nazi war criminals. 

The experience deeply affected him, and he came back to the US Supreme Court a markedly different kind of legal thinker (see his Youngstown opinion--where he slaps down Truman's power grab of the Steel Mills).  Justice Jackson realized that certain kinds of behavior and even speech are dangerous to the public welfare--as were the circulating agitating gangs of brown shirt prior to the ascendency of Hitler. 

The idea that the Constitution is "not a suicide pact" derives also from Abraham Lincoln's defense of his suspension of the Writ of Habeas Corpus as necessary during civil insurrection.  Lincoln's retort to his critics was: "shall all the laws go unenforced, except one"--meaning: shall the constitution be destroyed so that Habeas Corpus be preserved? 

There are practical and prudential limits around the edges of law and how it works when the survival of civil society is in danger.  Poor feckless George W. Bush and his sub-mediocre Attorney General Alberto Gonzalez, both tragically over their heads, had no clue as to how to explain the country’s predicament to the American people.  Of them, neither knew enough law or history to explain Guantanamo or the FISA court.  In the light of American history, there should have been much to revisit and illustrate.  Alack the day.

We've been here before.  And we will be here again.  There is nothing new under the sun...except for the Frat Boy sons of former presidents and the simpletons who play Mafia Wars rather than adventure into the much more interesting and dangerous world of reality. 

John Snyder