No, the Constitution is not a suicide pact — but it’s also not a blank check for panic

We don’t get to infringe upon civil liberties right now because someone invokes existential angst and the possibility of crisis as though it’s a magic spell.

In free speech discourse, there’s a line that gets thrown around a lot when the going gets tough (or when someone really, really, really wants to censor something): “The Constitution is not a suicide pact.”

You’ve probably come across this quip before, but even if you haven’t you can still probably see why it’s so rhetorically effective. It’s got that delicious ring of gravitas and dire necessity to it — the kind of thing you imagine being scrawled in a bunker that’s under siege. But like many such phrases, it’s been repurposed beyond recognition, and its meaning has been all but inverted.

So let’s trace it back.

In spirit, the line comes from Justice Robert Jackson’s dissent in the 1949 Supreme Court case Terminiello v. City of Chicago. The case involved a suspended Catholic priest who gave a speech that sparked unrest — though, notably, it was the mob that reacted violently, not the priest himself.

Jackson, ever the pragmatist (and former Nuremberg prosecutor), warned in his dissent 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.” In other words, he claimed that the very principles we hold to as a nation will be our undoing if we aren’t careful. And that there may be times when it is justified to limit or deny Constitutional rights for the safety of the republic.

However, the majority of the Supreme Court disagreed, and held that even inflammatory speech is protected under the First Amendment — with the exception of speech that incites imminent lawless action.

So Jackson’s warnings went unheeded. And then, tragically, America committed suicide.

Wait — no, it didn’t.

In fact, we’ve now had 75 years of Terminiello’s majority logic in action. For the last three quarters of a century, Americans have been able to criticize the government and call for radical change. They’ve been free to be publicly and vociferously wrong, offensive, disruptive, and even inflammatory in their speech. And somehow, despite Jackson’s fears, we’re all still here, chugging along.

Still, the sentiment persisted. In the Majority Opinion for the 1963 case Kennedy v. Mendoza-Martinez, which involved stripping citizenship from draft dodgers, Justice Arthur Goldberg echoed Jackson’s argument. He is also responsible for the exact phrasing of the line that has become such a popular censorial cudgel in recent years:

The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, for, while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government. [Emphasis added]

However, in its broader context, it becomes clear that Goldberg didn’t mean anything remotely resembling “Let’s throw out rights when things get scary.” In fact, he meant that rights have limits, and he’s absolutely correct there. But those limits better be really, really well justified.

And guess what? We have a tool for assessing that kind of justification in the law. It’s called strict scrutiny.

Strict scrutiny is the highest standard of judicial review, and it is no joke. In effect, it means that if the government wants to infringe on a fundamental right — like, say, free speech — it must prove that the restriction serves a compelling government interest, is narrowly tailored, and is the least restrictive means available. This is for good reason. We don’t want the government horning in on our rights lightly. Once a right is relinquished, it’s very hard to get back, so the Founders were — and we should be — reluctant to do so.

I always think about strict scrutiny when watching “Battlestar Galactica” (the reboot, obviously) because it’s as concrete an example of a compelling interest as you can imagine. When humanity is reduced to 50,000 souls, and they’re being hunted across space by killer robots, then yeah, that’s an existential crisis. Losing that battle means the end of the human race. So yes, when the stakes are clearly and objectively life or death like that, I can see a reasonable argument for infringing on fundamental rights in order to save humanity.

This image has nothing to do with the topic of this piece. We just thought it was really friggin’ funny.

However, no matter what anybody says, we aren’t in a remotely comparable situation right now. Perhaps the closest we have ever come to something like that is the Civil War. Now, I have my criticisms of many things Lincoln did during that time, but when Lincoln suspended habeas corpus, the country was literally on the brink of ceasing to exist. You can agree or disagree with how far he went to preserve the nation, but the context he was operating in was in fact a real and pressing existential threat.

Now, to be fair, we may be in the middle of a crisis that can lead to something existential — but the fact remains that we are not there yet. And that’s why when someone argues that we need to clamp down on civil liberties because of a new social media platform, or a rise in dis- and misinformation, or speculative concerns about what might happen with AI, I respond: That’s not an existential crisis. It’s not an asteroid hurtling toward Earth, or an army of killer robots programmed to eliminate the human race. No, it’s just politics. It’s policymaking. It’s the natural tumult of technological progress.

Again, if things escalate beyond our current circumstances — if AI begins to present real existential threats, for example — the conversation changes. But that’s an if-then scenario, not a right now one. We don’t get to infringe upon civil liberties right now because someone merely invokes existential angst and the possibility of crisis, as though it’s a magic spell.

If you can’t see how that kind of fear-mongering and hysteria can be abused, maybe that’s the threat you should be more worried about.

I’ve said this many times before, but it bears repeating: Throughout history, every transformative technology — from the printing press to the telegraph to the Internet — was met with panic and doomsaying. We were told they’d lead to chaos, revolution, and societal collapse. And yes, it’s true that not everything that came out of those technologies was good. Some of it was terrible. But regardless, we didn’t ban them. We adapted to them. We learned to offset the costs because, as it turned out, the benefits far outweighed them. Most importantly, we preserved the open exchange of ideas despite the difficulty these technologies created for us, because we have always known that knowledge creation — perhaps the most important human endeavor there is — depends on it.

That’s why I get particularly concerned when people suggest heavy-handed federal regulations to these new technologies, such as algorithmic discrimination laws that essentially say, “No statement that could possibly lead to unequal outcomes shall pass.”

These are incredibly blunt tools — and they don’t just regulate speech, they also inevitably dictate what can be known, believed, or even studied.

That’s not safety. That’s intellectual tyranny. And history tells us that tyrants and utopians alike have always lusted after that kind of control. We cannot give it to them.

No, the Constitution is not a suicide pact. But it’s also not a license to panic. As a species we’re prone to panic, which is why we have tools like strict scrutiny. These tools are what keep us sane, principled, and free even when times get weird and our judgment may be clouded by fear and the desire for safety.

The solution to future challenges and concerns is to develop more tools like that. And that is why, for example, FIRE and the Cosmos Institute are putting $1 million in spot grants to help develop ways to keep AI — our most recent and most powerful paradigm-shifting technology — on the side of truth-seeking, knowledge-creation, and open inquiry.

That is the real way forward. And if we hope to avert true existential crises, where the risk of losing fundamental rights is most pronounced, that’s where our efforts should lie.

SHOT FOR THE ROAD

For this year’s FIRE staff retreat, our entire team gathered at the Franklin Institute, which is a really fun place to visit — especially if you have kids!

As we dined under the (fake but still very cool-looking!) stars in the Institute’s planetarium, I delivered my yearly toast. I dedicated this one to two beloved FIRE staffers,

Tyler MacQueen

and Daniel Burnett, who remain in a perpetual battle over whether Lincoln should be recognized as The Greatest American.

And while I did pay tribute to Lincoln in ways that will become immediately apparent, I maintain that the title of Greatest American belongs to Benjamin Franklin — for whom our venue is named, and after whom I named one of my sons.

I hope you enjoy the speech, and I hope the inside jokes aren’t so inside that you don’t chuckle at them.