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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 William & Mary Bill of Rights Journal Volume 20 (2011-2012) Issue 2 Article 2 December 2011 Sacrifice and Sacred Honor: Why the Constitution is a "Suicide Pact" Peter Brandon Bayer Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons Repository Citation Peter Brandon Bayer, Sacrifice and Sacred Honor: Why the Constitution is a "Suicide Pact", 20 Wm. & Mary Bill Rts. J. 287 (2011), https://scholarship.law.wm.edu/wmborj/vol20/iss2/2 Copyright c 2011 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj SACRIFICE AND SACRED HONOR: WHY THE CONSTITUTION IS A “SUICIDE PACT” Peter Brandon Bayer* ABSTRACT Most legal scholars and elected officials embrace the popular cliché 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. 287 288 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 of every 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 Purpose Is to Oppose Evil ...............299 C. Maxims and Morality’s “Value Monism” ......................303 D. The Indisputable Value of Experience and of Evaluating Anticipated Consequences ..................................305 E. Can We Reason and If So, Can We Reason Impartially? ..........306 F. Why Must We Be Moral? ..................................311 G. The Essential Aspect of Sacrifice ............................312 H. The Inadequacy of “Threshold Deontology” ...................319 I. Refined Consequentialism Is Consequentialism .................322 II. HONOR, DEONTOLOGY AND DUE PROCESS ........................328 A. Honor’s Worth ..........................................329 B. How Honor Works ........................................331 C. Honor: Morality’s Elegant Vessel ............................333 D. The Declaration of Independence Embraces Deontological Morality as the Essential Duty of Legitimate Government ................335 E. To Secure Government’s Intrinsic Duty to Protect Transcendent “Life, Liberty and the Pursuit of Happiness,” the Declaration Pledges Every American’s “Sacred Honor” ....................339 F. The Declaration Did Not Conclude, but Rather Began the New Nation’s Mission to Understand and to Attain “Sacred Honor” ....342 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 Categorical Imperative—Formulation One, Universal Maxims ........................................353 D. Kant’s Categorical Imperative—Formulation Two, Treating Persons as Ends in Themselves ..............................354 E. Kant’s Categorical Imperative—Formulation Three, The Categorical Imperative and the State ...................................358 F. How Government Is Constrained Lest Coercive Authority Be Used Illicitly ............................................365 G. Why Law and Morals Functionally Are 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 Constitution of Necessity’s Methodology ...................378 C. The Constitution of Necessity—Consequentialist Rejoinders .......380 D. The Constitution Must Be a Suicide Pact ......................383 E. Consistent with Its Roots in the Declaration of Independence, the Constitution Embraces the Transcendence of Rights .............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 Controlling Principle of Due Process Is a Kantian-Like Perception of Individual 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 constitutional order—the whole society regulated by that constitution—risk its own demise rather than betray the essential precepts that the constitution embodies. Only principles of such magnitude warrant inclusion in the supreme document of a particular people.1 1 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 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 be worthy of such communal sacrifice—the given constitution must be moral; that is, both designed to enforce and actually capable of enforcing the abiding moral duties that demarcate legitimate from illegitimate governments. Pursuant to the character
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