William & Mary Bill of Rights Journal
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” principles 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 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 persons 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.”