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Since there's a current HNQ Q&A on the site discussing "state of emergency", I remembered a piece in Tom Clancy's novel "Executive Orders", where the characters discuss validity of certain Presidential actions (specifics don't particularly matter to the question, but they pertained to implementing domestic quarantine via restricting citizen movements to deal with biological weapon attack; which fits the theme of that Q&A).

As a "final" argument to a discussion, one of the characters uttered a very pithy phrase: "The Constitution is not a suicide pact", which kind of settled the discussion in a way. That passage never read well to me, since it seems unlikely that this rationale would fly with SCOTUS.

However, I'm not a constitutional scolar, so I'm not sure if my impression was correct, and as such:

Has SCOTUS ever ruled explicitly based on "The Constitution is not a suicide pact" rationale? (or, alternately, explicitly rejected such a rationale)

  • Not sure if this is better suited here or on Law.SE... – user4012 Feb 6 '17 at 15:07
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Yes, to the extent that Supreme Court justices have used that locution to form at least part of both assenting and dissenting opinions. From Wikipedia

"The Constitution is not a suicide pact" is a phrase in American political and legal discourse. The phrase expresses the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people. It is most often attributed to Abraham Lincoln, as a response to charges that he was violating the United States Constitution by suspending habeas corpus during the American Civil War. Although the phrase echoes statements made by Lincoln, and although versions of the sentiment have been advanced at various times in American history, the precise phrase "suicide pact" was first used by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court. The phrase also appears in the same context in Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court decision written by Justice Arthur Goldberg.

Justice Arthur Goldberg wrote the court's opinion in the 1963 U.S. Supreme Court case Kennedy v. Mendoza-Martinez. The court determined that laws permitting stripping draft evaders of their citizenship are unconstitutional. Goldberg wrote: "The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government."

But no to the extent that the ruling fact patterns were about something else entirely. SCOTUS never ruled on the phrase the same way that they ruled on gay marriage for example, and given the metaphor, I don't think they could.

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