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I Dissent

… or possibly “Indecent”.

“The Constitution is not a suicide pact” is a rhetorical phrase in American political and legal discourse.

It is most accurately attributed to the rhetoric in a dissenting opinion in Terminiello v. Chicago 337 U.S. 1 (1949), a case involving a $100 fine for disturbing the peace, that had been reviewed by the appellate and supreme court of Illinois before reaching the Supreme Court of the United States.

[Justice Robert H.] Jackson’s dissent in this case is most famous for its final paragraph:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger 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.

From the same CNN article I linked to in my post on the recent decision on habeas corpus we have:

Four justices agreed. In a sharp dissent, read in part from the bench, Justice Antonin Scalia said the majority “warps our Constitution.”

The “nation will live to regret what the court has done today,” Scalia said.

He was supported by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

In a blistering dissent, Justice Antonin Scalia said the decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

It’s nice to know that Justice Scalia doesn’t believe that Americans should be prepared to die in their efforts to “support and defend the Constitution of the United States”, because that means he will hold blameless soldiers who decide that getting killed is not what they signed on for, and thus they can just quit without penalty.

In the Associated Press coverage:

Chief Justice John Roberts, in his own dissent to Thursday’s ruling, criticized the majority for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.”

Since “enemy combatant” was pretty much made up from whole cloth by the Hedgemony, there is no way of comparing it to anything else. Prior to this creature of Dr. Feith-enstein et al. you had criminals and prisoners of war, both of whom had well established rights.

The CBS article combines the AP reporting with some of their own:

Sen. Lindsay Graham, R-S.C., called the ruling a “dangerous decision” because in the middle of a war, military officers could be dragged into federal court, reports CBS News correspondent Wyatt Andrews.

“Never in the history or warfare have we allowed enemy prisoners to go to a federal court and sue our own troops to be released,” Graham told Andrews.

Well, Senator as an Air Force Reserve JAG you know why: because those prisoners were classified as POWs, spies, or criminals and treated accordingly. If the Hedgemony hadn’t decided to act medieval there wouldn’t be a problem. If they had paid attention and done their jobs, we quite possibly wouldn’t be in this mess.

The same year that the Magna Carta was signed, 1215, the Fourth Lateran Council forbade clergy from participating in a trial by ordeal, which effectively ended the practice. The Hedgemony and the dissenters want to return to the good old days of the 11th century.