Our Poisoned Language

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Ryan B says:

    I believe that sentence’s intended meaning is “The Constitution was not meant to be a suicide pact.” The obvious implication being that, if it appears to be one, you must be reading it wrong.

    It’s not really quite so mysterious as you make it out to be.Report

    • Avatar Ryan B in reply to Ryan B says:

      Also, why is that my avatar? That is horrifying.Report

    • Avatar Jaybird in reply to Ryan B says:

      You can use that for anything, though.

      “You shouldn’t waterboard known terrorists.”
      “The Constitution is not a suicide pact.”

      “You shouldn’t waterboard suspected terrorists.”
      “The Constitution is not a suicide pact.”

      “You shouldn’t waterboard the children of suspected terrorists in the hopes that the terrorists will give up information even more easily.”
      “The Constitution is not a suicide pact.”

      “You shouldn’t waterboard people who run ISPs because some people use the internet to purchase 2 Live Crew albums from Amazon.”
      “The Constitution is not a suicide pact.”Report

    • Avatar Jason Kuznicki in reply to Ryan B says:

      Thinking a bit more about your comment, the main thing it accomplishes is to extract the whole messy “suicide pact” trope from the argument entirely.

      No one thinks it, so why bring it up? Now, they have an interpretation, and so do I. Let’s figure out which one is correct, shall we? Without the insinuations of suicidal tendencies.Report

      • Avatar Ryan B in reply to Jason Kuznicki says:

        That, I think, is the right argument. I like to think no one really believes that anything is going to cause us to all kill ourselves. Of course, reading op-ed pages, that’s not always clear.Report

        • Avatar Jason Kuznicki in reply to Ryan B says:

          I think we agree on the work that your argument would do, if indeed it works. I’m not quite sure we agree that it’s correct.

          As Ryan Alford reminds us at Cato Unbound:

          [Consider] arguments such as “the Founding Fathers couldn’t have believed… X, because that would mean Y, and Y does not appear to be a pragmatic approach.” Every variation on this theme is as fallacious as “it cannot rain tomorrow, because we’ll be picnicking and that would ruin everything.” The Framers had uncompromising ideas about liberty, rights, and limited government; they bound us to constitutional principles that [Gregory] McNeal might find burdensome.

          It may be wishful thinking, then, to say that we can always re-interpret to avoid suicidal consequences. Or it may be that there aren’t suicidal consequences to an uncompromising approach on civil liberties. That’s the conflict I had in mind when I wrote, anyway.Report

          • Avatar Ryan B in reply to Jason Kuznicki says:

            Uncompromising ideas about liberty and rights that they were more than happy to compromise for women, blacks, and people who didn’t own property.

            I know that’s a trite thing to say, and I take your point in general, but I actually like your first post-quote sentence better than the one following it. It may actually be the case that the Constitution, rigorously followed, would be a disaster. It was written over 200 years ago by people. Even if they were a lot smarter than me, I can barely make a coherent New Years Resolution – so it’s probably not crazy to think that they had some ideas that were just bad.

            In those cases, it’s possible that no amount of re-interpreting would give the words a meaning that would actually help. My preference is to amend in such situations (since we have that option), but the amendment process has been taken so far off the table that that’s almost never realistic. It’s the side effect of creating this secular religion around the Constitution; we’re told “if you don’t like what it says, amend it”, while at the same time we’re told “it was obviously written by perfect people so how could it ever be wrong about anything?”Report

          • Avatar BlaiseP in reply to Jason Kuznicki says:

            Most democracies periodically rewrite their constitutions. The UK has managed to get by without one coherent document styled a constitution. Granted, they have a host of laws and parliamentary rights and other documents, but it seems fair to observe all this hooey about the Founding Fathers is actually grounded in a morass of English common law going back into antiquity. The Founders did not start from scratch.

            Our Constitution has probably hung around too long; by virtue of its amendable nature, the core Constitution has arguably become an impediment to modern jurisprudence. Consider how much law now hangs on the 14th Amendment and the Commerce Clause. Constitutional law now resembles nothing so much as Talmudic studies: huge bodies of settled law now rest upon layers of tangential commentary.

            When we read the Federalist and Anti-Federalist Papers, we see the Founders explicating their intents and fears. These documents, far more than the pilpul of modern constitutional scholars, show the Founders knew they were building on shifting sands, that revisions could and should be made over time in response to the changing needs of the nation.

            If the Constitution is a pact of any sort, it is a pact with the long-dead, not the living. When we consider the problems of the USA and its Constitution, consider the poison embedded in the Three-Fifths Compromise and how imperfectly it was addressed in the Thirteenth and Fourteenth Amendments. Consider how easily Plessy avoided the Fourteenth Amendment. Consider the imperfect solutions found in Brown v. Board of Education.

            The Constitution was already a dead thing when it was signed; all our rights in law are mere amendments thereunto, grudgingly and imperfectly granted and trivially circumvented. We deserve a better document but we will not get it, not while this wretched compendium of Talmudic commentary and idiotic scholar defenders surround it, choking it off, reducing our SCOTUS appointments to political dog fights.Report

            • Avatar Jaybird in reply to BlaiseP says:

              I wonder what a Constitution that accurately reflected what our rights *REALLY* are would look like.

              I wonder if it could possibly get ratified if put up for a vote.Report

              • Avatar Ryan B in reply to Jaybird says:

                The troubling part for liberals and libertarians (or the part that should be most troubling) is that I bet some of the most controversial rights on the list would be the ones we actually like the best.

                On the other hand, are you under the impression that we could even get the Constitution ratified as is? Can you imagine trying to justify the First and Fourth Amendments to actual American voters?Report

              • Avatar BlaiseP in reply to Ryan B says:

                One of our problems, speaking as a liberal, is there just isn’t enough meat on the bones of our Constitution. Gnomic phrases such as “well-regulated militia” and the entire Fourteenth Amendment, hell, we should have at least a thousand words of expansion on the Fourteenth Amendment in our Constitution, not a collection of court cases. We know the Commerce Clause is trouble. We’ve known, ever since the Civil War, the Federal Government has usurped more power than it’s due.

                Plainly, we need more Constitution.Report

              • Avatar Jaybird in reply to Ryan B says:

                I don’t think that we could get the Constitution ratified as is.

                I think that the 3rd Amendment is the only one that would survive intact, if that one. Maybe the 13th, maybe (we wouldn’t need it because slavery would be a violation of the other Amendments that we couldn’t get ratified).Report

              • Avatar Ryan B in reply to Jaybird says:

                I don’t even want to contemplate what the modern GOP would say if we had to rehash the debates over the 3rd Amendment.

                (Obligatory disclaimer: I’m not trying to start a “my party is better” flame war. I just think, of the two parties, the GOP would probably be the more obnoxious on this particular issue.)Report

              • Avatar Jaybird in reply to Ryan B says:

                Get behind the troops.

                Or get in front of them.Report

              • Avatar BlaiseP in reply to Jaybird says:

                My daughter married a Finn. We had loads of discussions about how and why Finland reformed its constitution.

                You bring up a useful point, which leads me to a further consideration: not only would a new constitution give us a better picture of what our rights might be, but it would give us a clearer picture of how those rights would be protected, the plain old mechanics of enforcement. The Fourth Amendment is a dead letter for all practical purposes: how the hell did we get to this parlous state of affairs? Who let the government do this to us and on what grounds?Report

              • Avatar Jaybird in reply to BlaiseP says:

                how the hell did we get to this parlous state of affairs? Who let the government do this to us and on what grounds?

                Those who believed that The Law could make people be Better.

                So… idealists.Report

            • Avatar Wolfgang in Pauper's Grave in reply to BlaiseP says:

              Hey, Mr. Blaise, please, the Fourth of July is so close, can’t we cherish our, long-held loved and worshipped Founders? Next thing you’re going to tell us is there is no Easter Bunny or that a Member of Congress showed his Member to an anonymous cyber trollop.

              Considering our present day elected leaders, I much prefer our dead ones. I now commission you to write an entirely new Constitution. Or if you should stumble across a better document enumerating our natural, God-given rights, that will work as well–the only thing that matters is the end result.

              Please, by all means, take your time. Personally, I LOVE Scalia! Bucket fulls of brilliance, that wonderful man has. While 99% of the Leaguers would probably vote that he is a man you deeply detest, I will cast the vote that you have the highest respect for this illuminating, compelling figure. A brilliant, brilliant legal scholar if there ever has been one. I’d even go so far, as to say you like Bork. That’s a two for two in my books which puts you on very solid ground and confirms the fact you manifestly do NOT tread down the stodgy, uninspiring, vacuous beaten path.

              Go Blaise Go!!

              Here’s Glenn Gould to snatch you off to the world of contrapuntal bliss. Enjoy!

              http://www.youtube.com/watch?v=0Lvoht5AnfwReport

              • Avatar BlaiseP in reply to Wolfgang in Pauper's Grave says:

                The Founders were remarkable men: the world has never seen a brighter collection of thinkers collected in one place.

                I am put in mind of the old Japanese (it may be Chinese) proverb of the woman who would burn incense before her statue of the Buddha. But others were burning incense before their Buddhas too, and she would guide the other columns of smoke in front of her own statue to the point where its blackened nose became quite ugly.

                Hindus, even Orthodox Christians, all tend to surround their ikons and idols with so much frippery and garlands the original ikon can barely be seen. How many years must we carry the saints around while we ignore the lessons of their saintly lives and refuse to follow their excellent examples?

                The reality of the Founders is extraordinary enough. We do not need to bedeck them with our garlands and suchlike. I do not hold with too much of these revisionist historians who tell us of their faults and failings, yet we must retain some clarity of vision here. In the face of slavery, the Founders flinched. Lafayette wrote to Thomas Clarkson:

                While I did cooperate with you in our African concerns, you saw what opposition we had to encounter namely from the French Aristocrats and the Jacobine leaders of that time? Procrastination became necessary, yet I was ashamed to tell foreigners how necessary it had been. But I told you that in our doctrine of liberty you could confidently anticipate a speedy destruction of the slave trade, and an enfranchisement of the negroes which I wished to be gradual. How the measure has since been hurried and to what effect you have seen! To what intent God knows …

                I hope a peace is not far distant wherein almost all the maritime powers are concerned What better atonement can be devised for the calamities and the crimes of this war than to insert a formal article which shall at once put a stop to the infamous trade, and promote, as well as we can, the restoration of our negroe brethren to the rights of men? What Christian government would oppose it?

                Well, our government, for one, opposed it. Do not for a moment forget those geniuses were also politicians and planters and slave owners, who in their fecklessness allowed America to become the great bastion of slavery. Even sainted Abraham Lincoln hemmed and hawed over it, only freeing the slaves in the Confederacy.

                It is a sad fact that Politicians seldom enact good laws, not while expedient and self-serving ersatz can be pushed through Bismarck’s Sausage Machine. If we are to prefer the Founders, at least read the Federalist Papers to see them consider the politics of faction.Report

            • Avatar BSK in reply to BlaiseP says:

              I’ve argued that we should tear up the Constitution every so often and start over. Or at least put everything up for re-evaluation. Any well run organization is constantly reflecting and has built in mechanisms for amending practices that require it. While we technically have an amendment process, it is painfully difficult to make happen and instead we use the Courts to make things happen, which is decidedly less than ideal.Report

              • Avatar BlaiseP in reply to BSK says:

                And in fairness to the courts, they’re stuck with the Constitution they’ve got on hand. Precedent isn’t as good a guide as we might think: sure, they provide some guidance, but each case (provided it was even a good decision!) was decided on the merits, an interpretation of what was the received wisdom at that time.

                Conservatives are always upset by activist courts. I sympathize, I really do: Conservatives want us to be guided by the long-term view, not the current legal fashion trends. Trouble is, as a Liberal, I want the courts to be guided by a robust Constitution with clear guidance for our times, not some hoary old piece of shit which even its authors knew would not hold water forever. We need the Conservatives to help write that new Constitution, so we can have it abide by those long-term principles, avoiding these ridiculous fashion trends.Report

              • Avatar tom van dyke in reply to BlaiseP says:

                The “conservative” objection is to courts telling us the Constitution now demands X when it hadn’t for decades and centuries.

                The “conservative” position is that where the Constitution is silent, it’s simply silent. It can permit both X and Y in most of these controversies; it’s when the courts [and “The Court”] arrogate to themselves the decision-making that is reserved “to the states and the people, respectively” that “conservative” hackles are raised. It’s autocracy, and does not have the consent of we, the governed.

                And until you can begin to state “conservative” positions fairly and equitably, Blaise, you will continue to garner objections from me. Grenade-tossing—bull shoveling— simply buries the many thoughtful and good-faith exchanges that have made this blog worth frequenting.

                And that is my core objection, not to substantive disagreement. I’m attracted to this blog precisely for the disagreements and exchanges, in a somewhat neutral forum as opposed to the usual shitstorms, shoutdowns, lion’s dens and echo chambers where principled discussion is impossible. A gentleman of your manifest intelligence and erudition must surely appreciate that as well. Cheers.Report

      • Avatar Chris in reply to Jason Kuznicki says:

        I actually think that Ryan’s point is correct, and that instead of removing the “suicide pact,” it throws it in where it wasn’t in the first place. The point is that no one thinks that it’s a suicide pact, so by pointing that out, you’re implying that the interpretation you disagree with implies that it is. If the people who hold that interpretation actually thought that it was a suicide pact, they wouldn’t care, but since they don’t, the statement carries rhetorical force. It’s a pretty commonly used trope in virtually every type of discussion: you know that your interlocutor doesn’t believe X, so you imply (and often it’s little more than a tacit implication) that her preferred position actually results in or requires X.Report

  2. Avatar Rufus F. says:

    This is an interesting and entertaining discussion. What does “The Constitution is not a suicide pact” mean? Something like, “The Constitution is not supposed to be taken literally in emergency situations if doing so would mean we all die.” It’s funny that they think that Constitutional literalism is so dangerous, and there again is the ever-present fear of death taken to rather hysterical extremes. We’ve yet to be in the actual situation in which following the Consitution to the letter leads to our deaths. But, already they’re signalling that they’d be ready to throw it overboard if necessary for their self-preservation, surrending before the actual shooting starts. If you listen closely, you can hear their knees rattling together.Report

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