“It will almost certainly cause more Americans to be killed”: Is the U.S. Constitution a suicide pact?

So, the United States Supreme Court today decided that detainees at Guantanamo Bay have the right to appeal to U.S. civilian courts to protest their imprisonment. Writing for the 5-4 majority, Justice Anthony Kennedy sounds the high-minded note: sure, there’s the threat of terrorism, but “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Thanks for pointing that out, Mr. Justice Kennedy.

Some readers will recall that Justice Kennedy is given to flights of legal hermeneutical expression. In 1993, Kennedy infamously delivered himself of this expostulation about abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey:

These matters, involving the most intimate and personal choices a person may make in a lifetime [abortion, etc.], choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Judge Robert H. Bork, among others, has treated this bloviating gibberish (repeated by Kennedy, with reference to homosexual practices, in 2003 in Lawrence v. Texas) to some of the opprobrium it deserves. Now Mr. Justice Kennedy wants terrorists to have a crack at defining their “own concept of existence, of meaning, of the universe, and of the mystery of human life” by granting people who are (most of them) not U.S. citizens, who are indeed sworn enemies of the United States and all it stands for, the civil liberties and protections afforded by the U.S. criminal justice system.

The folly of such a decision can hardly be overstated. Some part of the potential damage is outlined in Andrew McCarthy’s book Willful Blindness, a riveting account of the trial of the mastermind of the first attack on the World Trade Center in 1993 and a brilliant meditation on the limitations of using the criminal justice system as a tool of national security. (”Riveting account”? “Brilliant meditation”? Perhaps I should mention that Encounter Books, of which I am the publisher, published the book.)

The point of the Constitution is to preserve liberty, not to play word games that make liberty vulnerable to its enemies. This is a point that seems to have escaped Justice Kennedy. It did not escape Justice Robert H. Jackson. Writing for the minority in 1949 in Terminiello v. Chicago, a case about free speech, Jackson noted that

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.

Alas, Justice Kennedy and his left-liberal confreres have gone far in converting the constitution into a suicide pact. Today’s decision is historic. Please, remember the men and women who signed on to it: Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter John Paul Stevens, and Kennedy. Remember their names. They have just made you, your family, and your country more vulnerable to attack by theocratic fanatics bent on the destruction of Western civilization.

Justice Kennedy’s opinion will appeal to all of the sophisticated “why-can’t-we-all-just-get-along” spokesmen for peace and comity who crowd the parliaments of the EU and, in the Democratic Party of the United States, are vibrating with anticipation at an Obombamanic attack on the U.S. in November. (Please pardon the unorthodox spelling.) Personally, I believe that the instinct for self-preservation is sufficiently alive and well enough among most voters to prevent the dégringolade that an Obama administration would mean for this country. Most people, I have to believe, do not want to see themselves taxed into penury. They do not relish the prospect choking the engine of prosperity with stupid bureaucratic over-regulation. They object to the erosion of individual liberty in the name of political correctness. They rebel at the sentimental invocation of “change” when it is nothing more than an empty epithet designed to reinforce the prerogatives of a big-government, anti-freedom elite.

What does this recent intervention by the Supreme Court mean? Justice Antonin Scalia got it in one: the decision, he said, “will make the war harder on us. It will almost certainly cause more Americans to be killed.” What will Justices Kennedy, Breyer, Ginsburg, Souter, and Stevens say then?

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