The Founders' Rights Stuff

'The Constitution is not a suicide pact." After 9/11, that old saw -- originally coined by Supreme Court Justice Robert Jackson -- was dusted off. Lately, it's been getting a heavy workout.

On June 12, for instance, the U.S. Supreme Court released a decision authored by Justice Anthony Kennedy holding, in Boumediene vs. Bush, that Guantanamo prisoners have the right to ask the federal courts to rule on the validity of their continued detention (many have been held for years, despite little evidence in some cases that they're truly "unlawful combatants.")

Barack Obama praised Kennedy's majority opinion for "re-establishing our credibility as a nation committed to the rule of law," but John McCain denounced it as "one of the worst decisions in the history of this country." The Wall Street Journal's editorialists agreed with McCain and hauled out the usual cliches: "More Americans are likely to die as a result [of this decision]," they opined darkly. "Justice Jackson once famously observed that the Constitution is 'not a suicide pact.' About Anthony Kennedy's Constitution, we're not so sure."

When invoked with the requisite tone of pompous finality, "the Constitution is not a suicide pact" is an effective rhetorical ploy. Who could disagree? Anyway, no one wants to defend suicide pacts. The very phrase sounds like "suicide bomber," thus managing to subtly imply that those who stand up for basic rights are not only self-destructive but share the ideology of terrorists.

But the Constitution also doesn't contain any footnotes that say, "Note to our descendants: This Constitution is intended for easy times only. At the first sign of trouble, feed this document to your dog. We won't mind. We only fought a war for it."

This Fourth of July, celebrate by rereading the Declaration of Independence, created by more or less the same crowd who brought us the Constitution, 11 years and one war later. Remember it? "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness."

Wild stuff! To the founders, "all men" have "unalienable rights" -- not just U.S. citizens in the continental United States. (If the founding fathers were around today, Rush Limbaugh and Rudy Giuliani would pillory them as limp-wristed, latte-drinking, soft-on-terror liberals.)

It was treasonous stuff too. When the Declaration of Independence was drafted, there were no U.S. citizens: Instead, there were about 2.5 million scrappy Colonists who legally owed allegiance to the king of England, George III. But they went to war -- over the little matter of freedom, law and unalienable, God-given rights.

Among their grievances against King George, the rebellious Colonists complained that he ignored the will of their representative bodies, refused "his assent to laws for establishing judiciary powers" and "affected to render the military independent of and superior to the civil power." The Colonists also objected to the denial of "the benefit of trial by jury" and the king's practice of avoiding the inconveniences of due process by transporting prisoners "beyond seas to be tried for pretended offenses." (George III would have loved Guantanamo.)

The founders had a word for governments that respected rights only arbitrarily and selectively: tyranny. The signers of the declaration took rights seriously. They wrote, "For the support of this declaration, we mutually pledge to each other our lives, our fortunes, and our sacred honor." That wasn't mere rhetoric. Technically, the signers were all traitors, liable to be executed for treason. And they accepted that standing up for rights means taking some real risks.