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Sacrifice and Sacred Honor: Why the Constitution Is a "Suicide Pact"

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Sacrifice and Sacred Honor: Why the Constitution Is a Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2011 Sacrifice and Sacred Honor: Why the Constitution is a "Suicide Pact" Peter Brandon Bayer University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Constitutional Law Commons, and the Legal History Commons Recommended Citation Bayer, Peter Brandon, "Sacrifice and Sacred Honor: Why the Constitution is a "Suicide Pact"" (2011). Scholarly Works. 774. https://scholars.law.unlv.edu/facpub/774 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. SACRIFICE AND SACRED HONOR: WHY THE CONSTITUTION IS A "SUICIDE PACT" Peter Brandon Bayer* ABSTRACT Most legal scholars and elected officials embrace the popular clich6 that "the Constitution is not a suicide pact." Typically, those commentators extol the "Constitution of necessity," the supposition that Government, essentially the Executive, may take any action-may abridge or deny any fundamental right-to alleviate a sufficiently serious national security threat. The "Constitution of necessity" is wrong. This Article explains that strict devotion to the "fundamental fairness" prin- ciples of the Constitution's Due Process Clauses is America's utmost legal and moral duty, surpassing all other considerations, even safety, security and survival. The analysis begins with the most basic premises: the definition of morality and why nations must be moral. This Article defends deontology: the philosophy that because moral principles are a priori, they must be obeyed regardless of terrible outcomes. Such is the sacrifice demanded by morality. As most theorists and politicians favor some form of consequentialism (the theory that the moral answer is the one that * Lawyering Process Professor, William S. Boyd School of Law, University of Nevada, Las Vegas. Ever since I first heard the adage, "The Constitution is not a suicide pact," nearly forty-five years ago, I have wanted to write a thoroughgoing, plausible defense of the counter- intuitive proposition that, in fact, it would be better for the Nation to perish than to betray the fundamental principles of decency that the Constitution commands not simply as a national aspiration, but at the Nation's highest law. Feeling at last ready to try, I hope this work fulfills that ambition. I thank the many friends and colleagues who have discussed and critiqued this work from its earliest outlines to its nearly final draft. In particular, deep thanks to Professors Rachel Anderson, Ian Bartrum, Chris Blakesley, Gregory Brown, and Linda Edwards, Rt. Rev. Dan T. Edwards, Professors David Forman, David Fott, Marty Geer, Lynne Henderson, Michael Higdon, John L. Hill, Steve Johnson, Sylvia Lazos, Tom McAffee, Ann McGinley, Jay Mootz, Ngai Pindell, Terry Pollman, Nancy Rapoport, Tuan Samahon, Jeff Stempel, and David Tanenhaus. Deep thanks as well to my library liaison, Student Services Librarian Chad Schatzel and to my research assistants David Krawczyk and Erica Okerberg. I thank as well my long time friend Dan Becker, whose abiding social conscience and insistence on excellence has inspired me since we were fellow students in high school. And, I thank most deeply my wonderful wife Joan, who always is my strongest support and most perceptive critic, and my parents Sue and Steve Bayer, who taught me from early childhood to strive, to question and to challenge. 287 HeinOnline -- 20 Wm. & Mary Bill Rts. J. 287 2011-2012 288 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 20:287 produces the most happiness), the defense of pure deontology is thorough. Next, this Article links deontology directly with the American Revolution by demonstrating that the Founders were deontologists who asserted in the Declaration of Independence that government is legitimate only if it governs according to eternal moral precepts. They pledged the new nation's "sacred honor" to uphold steadfastly the principles of moral government. Aware of their imperfections, the Founders instructed their successors to improve the moral philosophy underlying the Declaration. The deontology of Immanuel Kant expresses the best general paradigm of morality. Kant famously explained that all per- sons and societies share an overarching moral duty to respect the innate dignity ofevery human being no matter what sacrifice that duty may entail. Kantian ethics clarify why moral abidance is more important than life itself. Because it is the superior moral theory that the Founders sought, Kant's "dignity principle" must delimit the Constitution which, as explicated herein, is the legal iteration of the Declaration. This Article's concluding discussion of the Constitution, particularly its due process precedents, explains why the Kantian approach-sacrifice and honor-debunks the Constitution of necessity, proving that the Constitution is a "suicide pact." INTRODUCTION ................................................. 289 I. THE DISPUTE BETWEEN DEONTOLOGY AND CONSEQUENTIALISM ....... .293 A. Deontology, the Individual,the Group and the Society ........... 297 B. Morality's Nature and PurposeIs to Oppose Evil .............. 299 C. Maxims and Morality's "Value Monism" .................... 303 D. The Indisputable Value ofExperience and ofEvaluating AnticipatedConsequences .............................. 305 E. Can We Reason and If So, Can We Reason Impartially? .......... 306 F. Why Must We Be Moral? ............................... 311 G. The EssentialAspect ofSacrifice .......................... 312 H. The Inadequacy of "ThresholdDeontology" .................. 319 I. Refined ConsequentialismIs Consequentialism ................ 322 II. HONOR, DEONTOLOGY AND DUE PROCESS ........................ 328 A. Honor's Worth ...................................... 329 B. HowHonor Works........................... ......... 331 C. Honor: Morality's Elegant Vessel ......................... 333 D. The Declarationof Independence Embraces DeontologicalMorality as the EssentialDuty ofLegitimate Government ............... 335 E. To Secure Government's Intrinsic Duty to ProtectTranscendent "Life, Liberty and the Pursuit ofHappiness, " the Declaration Pledges Every American's "SacredHonor" .................... 339 F. The DeclarationDid Not Conclude, but Rather Began the New Nation's Mission to Understandand to Attain "SacredHonor" .... 342 HeinOnline -- 20 Wm. & Mary Bill Rts. J. 288 2011-2012 2011] SACRIFICE AND SACRED HONOR 289 III. THE KANTIAN OVERVIEW .................................. 346 A. Kant's Dignity Principle ................................ 348 B. Each Person's Innate Dignity Is More Precious than Life ......... 351 C. Kant's CategoricalImperative-Formulation One, Universal Maxims .................................... 353 D. Kant's CategoricalImperative-Formulation Two, Treating Persons as Ends in Themselves ........................... 354 E. Kant's CategoricalImperative-Formulation Three, The Categorical Imperative and the State ................................ 358 F. How Government Is ConstrainedLest Coercive Authority Be Used Illicitly ........................................ 365 G. Why Law and Morals FunctionallyAre Inseparable ............. 369 IV. DUE PROCESS-AMERICA'S HIGHEST DUTY-AMERICA'S VALUE MONISM . .............................................. 370 A. The "Not a Suicide Pact" Metaphor and the Constitution of Necessity . .......................................... 371 B. The ConstitutionofNecessity's Methodology ................. 378 C. The ConstitutionofNecessity-Consequentialist Rejoinders ....... 380 D. The Constitution Must Be a Suicide Pact .................... 383 E. Consistentwith Its Roots in the Declarationof Independence, the Constitution Embraces the Transcendence ofRights ............ 385 F. Due Process Is the Constitution's Value Monism, Thus Due Process Is the Controlling Concept that Should Afford No Exceptions ...... 391 G. The ControllingPrinciple ofDue Process Is a Kantian-Like Perception ofIndividual Dignity .......................... 396 CONCLUSION .................................................. 403 INTRODUCTION To be a true constitution,that which a society calls its constitution must enforce values so imperative, so fundamental, that the constitution comprises not only a way to live but more profoundly, a reason to die. Customarily through, for example, military service, individual citizens or groups of citizens may be required to risk their lives to preserve their constitution and the nation over which it presides. However, a true constitution rightfully demands that the entire constitutionalorder-the whole society regulatedby that constitution-riskits own demise ratherthan betray the essential precepts that the constitution embodies. Only principles of such magnitude warrant inclusion in the supreme document of a particular people.' ' See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958) (holding that the U.S. Constitution is the supreme law of the United States); cf Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-79 (1803). Certainly, it may please drafters to include some particulars not essential to HeinOnline -- 20 Wm. & Mary Bill Rts. J. 289 2011-2012 290 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 20:287 Simply believing that a particular constitution is worth dying for, however, is not enough. To be a legitimate constitution-to actually
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