The Green Papers
The Green Papers

Constitutional Ramifications flowing from the Boston Marathon Bombing

by Richard E. Berg-Andersson Staff
Mon 6 May 2013

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.-- United States Supreme Court Associate Justice DAVID DAVIS, in the Opinion of the Court in the case of Ex parte Milligan [4 Wallace (71 U.S.) 2 (1867)]

I have already written extensively about the case of Ex parte Milligan for this website and, thereby, do not at all feel the need to now so "beat a dead horse" by going into such detail about same again herein.

Suffice it to here say, then, that the essential constitutional doctrine flowing from said case is- as it yet remains!- the following: that if the nearby civilian courts be open for business, a person taken into custody for any criminal act must be taken before civil- and not military or, for that matter, any other- jurisprudential authority. Congress, therefore, does not have power to authorize military (or even military-style) detention (let alone trial before a military tribunal or similar extra-civilian commission) of civilians who are not in an actual war zone and, in addition, the principal test of whether a given jurisdiction is, or is not, in such an "actual war zone" (or otherwise under so-called 'Martial Law') is whether ordinary systems of Justice are, or are not, functioning therein.

In this, the Opinion of the Court in Milligan by Justice David Davis (from which I have already quoted at the head of this piece) was most emphatic:

"Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction", Davis's Opinion of the Court states. "It is also confined to the locality of actual war."

As a result, it was perfectly proper- as well as well within ordinary American constitutional norms- for the younger of (as well as sole survivor betwixt) the two Tsarnaev brothers (Dzhokhar), charged with principal responsibility for the altogether heinous Boston Marathon Bombing of Monday 15 April 2013, to be handled as the ordinary criminal suspect that he- in (legal, as well as actual) fact- is (this despite the extraordinary method, as well as effects, of the particular crime for which he has been charged). Without much real question, then: those who- moreso in the immediate aftermath of his capture in Watertown, Massachusetts on the evening of Friday 19 April than lately- called for the younger Tsarnaev to be considered as, say, an "enemy combatant" were- and are- 14-carat WRONG!!!

In answer to such as I have written at the end of the immediately preceding paragraph (and this would also be an attempt to answer the [far more important than anything *I* might write!] quotation from the Opinion of the Court in Ex parte Milligan at the head of this very piece), there is- more often than not- cited something of a constitutional aphorism to the effect that The Constitution [of the United States of America: though it could also be said of any of the State Constitutions or, for that matter, any Constitution- written or unwritten, "flexible" or "rigid"- on this Earth] is not a suicide pact.

There is much confusion as to from whence this particular pearl of legal wisdom itself comes: was it coined by Justice Robert Jackson (an FDR appointee to the U.S. Supreme Court [and the Chief Prosecutor at the Nuremburg War Crimes Trials of 1945-1946] who [very much like his longer-tenured colleague Felix Frankfurter, also an FDR appointee] tended, in his own court opinions, to try and "put the brakes on" the so-called 'liberal' jurisprudence issued by the likes of FDR appointees Hugo Black and William O. Douglas)? or, instead, should all due credit be given to Justice Arthur Goldberg (one-time U.S. Secretary of Labor and, later, U.S. Ambassador to the United Nations, a JFK appointee who, despite a relatively short tenure [some 3 years only] on the Nation's High Court, is regarded as, arguably, one of the more erudite "thinkers" within said 'liberal' jurisprudence by both supporters and detractors of such jurisprudence alike)?

Much of how the aphorism "The Constitution is not a suicide pact" is applied (or even misapplied) depends on whose use of it (Jackson's or Goldberg's) is actually cited, as well as by whom (as liberals, to this day, often purposely credit Jackson [as if to say to conservative opponents: "see, someone not so liberal first said this!"] while conservatives, for their own part, tend to- and for much the same reason- cite Goldberg ["Hey, one of yours said this!"])...

to this end, I thought it might well be at least somewhat useful- especially in light of what will become the case of United States v. [Dzhokhar] Tsarnaev- to examine just when, as well as how, this concept of the dangers of "constitutional suicide" actually arose:

Justice Jackson's version is as follows: 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. It comes from Jackson's dissent from the decision in the case of Terminiello v. the City of Chicago [337 U.S. 1 (1949)].

Father Arthur Terminiello [interestingly, a native of Boston!] was- in the years immediately following World War II- a defrocked Roman Catholic priest (he had been forced to formally resign the priesthood during the war [he- now based in Troy, Alabama- was serving, at the time, in the Diocese of Mobile] for having expressed anti-Semitic views on radio as well as within publications he himself produced: he, however, continued to insist that his own priestly vows were ever in effect and, therefore, continued to call himself 'Father Terminiello' [despite more than a few attempts by elements within the Catholic Church in America to get him to stop doing so]). Having already strongly allied himself with the Social Justice movement of the conservative 1930s radio priest Charles Coughlin, Terminiello was often referred to- in the media- as "the Father Coughlin of the South" (Terminiello was also an inveterate "Pearl Harbor Truth-er" [as he might be called nowadays], ever insisting that the attack on Pearl Harbor of 7 December 1941 was, at least to an extent, "staged" by the American Government).

In the Winter of 1945-1946, Terminiello was "on tour" throughout the Great Lakes States with Gerald L.K. Smith (a long-time ally of the aforementioned Father Coughlin back in the 1930s) who was a leading organizer of numerous überconservative organizations throughout both the Great Depression and World War II and, for a time, even after the war: one of Smith's organizations was called 'Christian Veterans of America' and Terminiello had been tapped to be the CVA's Chaplain. On 7 February 1946, the CVA held a meeting in an auditorium in Albany Park, a predominantly Jewish neighborhood in Chicago, Illinois (which itself was provocative, as Smith himself had long been considered to be vehemently anti-Semitic): hundreds of anti-Smith protestors of a mixed type (many members of the American Communist Party were present but, by and large, the protestors were not specifically Communist [and, indeed, a number of local Jewish community groups had many representatives within this crowd]) blocked access to the auditorium to the hundreds who wished to attend the meeting (both Smith and Terminiello, who had been scheduled to speak, themselves had to be escorted into the auditorium by a police detail).

While the meeting went on inside the hall, a riot broke out outside it (several amongst the protesters had smashed some of the windows and glass doors of the auditorium [many of these rushed the police lines in a vain attempt to get into the hall] and were arrested). Inside the hall, meanwhile, Terminiello- when it became his turn to speak- delivered something of a rant making reference to "Communistic Zionistic Jews" and "slimy scum that got in by mistake" (a pointed reference to any of the protestors outside who might have managed to get into the hall anyway); however, there is no real evidence that those who caused the trouble outside the hall ever heard what Terminiello said (therefore, they could not have been reacting to it in real time); nonetheless, Terminiello was arrested for having violated a city ordinance prohibiting the making of a "diversion tending to a breach of the peace": convicted at trial, Terminiello was fined $100, a conviction (and concomitant fine) which he appealed all the way to the Supreme Court of the State of Illinois before it, thereafter, ended up before the United States Supreme Court itself (the State's highest court having ruled that Terminiello's conviction had not at all violated his Federal constitutional rights and liberties, the case then came within the Federal High Court's purview).

Oral Argument in the case of Terminiello v. City of Chicago was heard before the Court on 1 February 1949: this, by the way, was a Court that- seven years earlier, in the case of Chaplinsky v. New Hampshire [315 U.S. 568 (1942)]- had already specifically applied, to a case before it, the Common Law doctrine of "Fighting Words" (also known as the "Hostile Words" or "Provocative Speech" doctrine) which had been held to have been enshrined within a statute of the State of New Hampshire that defined, as a Breach of the Peace (the Common Law definition of which is 'actions disturbing the security or peace of the public without lawful authority to do so'), "address[ing] any offensive, derisive or annoying word to any other person who is lawfully in any street or public place... call[ing] him by any offensive or derisive name... mak[ing] any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation". As U.S. Supreme Court Justice Frank Murphy (writing the Opinion of the [interestingly, unanimous] Court in Chaplinsky) put it:

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment [to the U.S. Constitution], it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words- those which by their very utterance inflict injury or tend to excite an immediate breach of the peace [this last being the barest essence of the Hostile Words/Provocative Speech doctrine at Common Law- REB-A]. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Here putting aside (if only as altogether anachronistic) the later "constitutional problem[s]" that the Nation's High Court would come to confront, especially during the 1960s and 1970s (as well as beyond), as regards "the lewd and obscene, the profane", the Court here- in Chaplinsky- upheld a conviction under the aforementioned New Hampshire statute and, thereby, set something of a Federal constitutional standard as to what constituted "Fighting Words" within, say, the Chicago city ordinance's "diversion tending to a breach of the peace".

But, come the Terminiello case, the High Court (Justice William O. Douglas penning the Opinion of the Court for a 5-4 majority issued on 16 May 1949) seemed to, perhaps, rule otherwise (even though the decision overturning Terminiello's conviction itself, technically, hinged on an incorrect [so the Court now ruled] Charge to the Jury by the trial judge [who had instructed the jury that Terminiello was guilty of violating the ordinance if he had engaged in "misbehavior which violates the public peace and decorum" and, further, that such "misbehavior" included anything that "stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance"]: Douglas thought this jury instruction at trial too broad- well beyond Justice Murphy's formulation in Chaplinsky).

Perhaps sensing this, Jackson dissented in Terminiello (thus, Jackson was in favor of letting his conviction stand) and it was while so dissenting (as well as within this specific context) that he warned "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" (Douglas's effective retort- within the Court Opinion in Terminiello- was that a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest. [Douglas, thus, saw the Opinion of the Court in Terminiello as a further shoring up of Murphy's Opinion of the Court in Chaplinsky, not at all as a potentially "suicidal" departure from it]).

Note well, however, that- rather than the entire Federal Constitution- Jackson was opining that the Bill of Rights, specifically, might become his "suicide pact"!

[If only something of a rather interesting footnote to all of the above, by the way: by the time Terminiello v. Chicago was decided, Father Terminiello himself had already abandoned his political activities (there had been something of a "falling out" with his mentor Gerald L.K. Smith back in 1947) and, in the same month of May 1949 in which the case was decided by the U.S. Supreme Court, was reinstated as an active priest by the Bishop of Mobile, Alabama. The one-time "Father Coughlin of the South", thereafter, pretty much disappears from History.]

On the other hand, Justice Goldberg's version of the aforementioned aphorism does refer to the Federal Constitution as a whole-- for he wrote that while the Constitution protects against invasions of individual rights, it is not a suicide pact. This comes from his Opinion of the Court in the case of Kennedy v. Mendoza-Martinez [372 U.S. 144 (1963)].

Francisco Mendoza-Martinez was a natural born American citizen who, nonetheless, held dual Mexican citizenship. During World War II, he travelled to Mexico and stayed there for the duration of the war (not returning to the United States until 1946). In 1947, he pleaded guilty to having violated the Selective Service and Training Act of 1940 (admitting that he had gone to Mexico to avoid military service) and served a year in prison; nevertheless, in the early 1950s, the United States brought proceedings against Mendoza-Martinez seeking to deport him to Mexico on the theory that he had been already stripped of his American citizenship under terms of the Nationality Act of 1940 and the Immigration and Nationality Act of 1952 which provided automatic loss of citizenship for "departing from or remaining outside the jurisdiction of the United States in time of war... for the purpose of evading or avoiding training and service" in the United States military.

The case took quite some time to work its way through the courts (in fact, it had already come before the United States Supreme Court in the late 1950s but had been sent back to the courts below [because the High Court had, very recently, rendered a decision in another case that had, at least somewhat, changed the legal paramaters under which the case (then known as Rogers v. Mendoza-Martinez [William Rogers was President Eisenhower's Attorney General]) had previously been adjudicated: the lower Federal courts were, thereby, given a chance to reconsider the case in light of these new realities]) and it was not until 10-11 October 1961 that Oral Argument was first heard in the case [the previous proceedings had dealt with whether or not the Attorney General of the United States had been estopped from stripping Mendoza-Martinez of his citizenship precisely because of his 1947 conviction (put another way: was the 1947 conviction and ensuing imprisonment punishment enough?): by 1961, Robert F. ("Bobby") Kennedy was serving as Attorney General for his brother, President John F. ("Jack") Kennedy, hence the new name of the case].

The case, by then nearly a decade old, was re-heard before the Court on 4 December 1962 and a decision in the case (one in Mendoza-Martinez's favor) was handed down on Monday 18 February 1963.

Justice Goldberg's Court Opinion stated that Congress has plainly employed the sanction of deprivation of nationality as a punishment... without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments [to the U.S. Constitution] (interestingly, among other precedents, Goldberg then cited Justice Davis in Ex parte Milligan where Davis noted that said 'procedural safeguards' were "promised to every one accused of a crime who is not attached to the army, or navy, or militia in actual service").

Goldberg emphatically stated that [c]itizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms. 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 enact. One of the most important of these is to serve the country in time of war and national emergency. It is here (and within this particular context) that Goldberg goes on to note that while the Constitution protects against invasions of individual rights, it is not a suicide pact.

At first glance, it seems as if Jackson's formulation of "The Constitution is not a suicide pact" is directed against an assertion of individual rights and liberties (as it comes from a dissent from a Court Opinion in support of Free Speech) while Goldberg's (coming from a Court Opinion favoring someone otherwise facing deportation without much procedural protection) is in favor of just such an assertion; thus, it is all to easy (where not also overly simplistic) to see Jackson's as the 'conservative' take in contradistinction to Goldberg's as the 'liberal' view.

But, in reality, both versions merely mirror one another: for each supports the notion that Government can, where necessary, restrict or even repress individual rights and liberties (although only so that the Constitution does not turn out to have been just such a "suicide pact")-- it's just that Jackson's complaint (as it were) was that Government should have been allowed to do so as regarded Father Terminiello while Goldberg happened to speak for a Court that would not allow Mendoza-Martinez to be stripped of his own. In addition- especially since Jackson only referenced the Bill of Rights, while Goldberg mentioned the Constitution as a whole- credit for coming up with the aphorism "The Constitution is not a suicide pact" should, properly, be given to both men.

Of course, none of what I have written about this above at all proves that one side, or the other, of the American political/ideological divide is correct (or, for that matter, incorrect)- either in general, or in relation to any particular constitutional issue- as regards their respective citings, where not also application(s), of the very adage The Constitution is not a suicide pact!

As for myself, I can only here note that I have little, if any, truck with any such notions that the American Constitutions (plural because I speak here of not only the Federal Constitutions, but also those of the Union's constituent States) might well be in any real danger of becoming "suicide pacts".

Rather, I come from that concept best (in my opinion) expressed by the late Congresswoman Barbara Jordan (D-Texas) while a member of the House Judiciary Committee considering, come the Summer of 1974 (the summer immediately following my graduation from high school as well as that preceding my matriculation at Boston University), Articles of Impeachment against then-President Richard Nixon as follows: My faith in the Constitution is whole; it is complete; it is total.

To my own mind, those who blithely throw about notions of 'Constitutions cum suicide pacts' tend to be those most mongering the very 'Fear itself'- Franklin Delano Roosevelt's "nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance"- and- while FDR was, at the time, specifically addressing a specific economic and financial emergency of national import- his words can well be applied to many, if not all, other archetypes of public Fear (Fear which all too many politicians and their most ardent supporters are not all that above exploiting for purposes of base electoral gain).

FDR himself understood that (for he stated the following immediately after my quote from him in the preceding paragraph) [i]n every dark hour of our national life, a leadership of frankness and vigor has met with that understanding and support of the People themselves which is essential to victory. Put another way, no matter how strongly challenged by events and their aftermath, Our Constitution will be (because History has shown that it always has been) able to necessarily rise to the occasion... on this point, I- for one- have no doubt!

But only if we retain Ms. Jordan's own "whole... complete... total" "faith" in the Constitution itself: faith that I myself ever retain.

This is precisely why we can't let "nameless" and/or "unreasoning" and/or "unjustified terror"- even terror that those we denominate as terrorists themselves seek to foment amongst we ourselves- cause us to unnecessarily abandon our own constitutional (hence, lawful- as well as legal) norms!

There has been much written about how Dzhokhar Tsarnaev does not at all "deserve" the constitutional protections he might now enjoy where he is not declared, for instance, an "enemy combatant". But, even here accepting- if only for sake of the argument- an argument that the younger Tsarnaev brother has so clearly violated his own Oath of Allegiance taken upon receiving American citizenship but a little over half a year before the Boston Marathon Bombing, I do not see anything- within the very text of the Constitution of the United States- at all related to a concept of 'Deserved Process of Law'...

for all *I* find therein are references to "Due Process of Law"-- quite literally, the legal procedures that are due (said procedures. therefore, being mandatory: not at all voluntary)...

why due to even Dzhokhar Tsarnaev? Because he is, after all, a human being (regardless of the status of his citizenship as a purely legal matter [as well as regardless of just how inhumane the Boston Marathon Bombings (or the later carjacking of "Danny" or the gun battle with police in the streets of Watertown) themselves were]): thus, however much we might disdain both him and his actions back on 15 April (or, for that matter, 18 into 19 April) last, he is no less one of God's children than are any one of us.

Therefore- and if, indeed (as is often said), the Declaration of Independence was the promise; the Constitution is the fulfillment- then he, no less than I (or, for that matter, any of you reading this [regardless of whether you happen to be within or outside the United States of America, American citizen or no (for the "self-evident Truths" of the Declaration are intended to be universal [if not, then they be hardly "Truths"- let alone so "self-evident"!])]), is "created equal" (that is: Equal under Law) and, thereby, "endowed by [his] Creator with certain unalienable Rights" no less than are the rest of us.

If you yourself, gentle reader, can truly- and most strongly- argue otherwise, then you are a better man or woman than I (though I might well yet reserve the right to think not!).

No, I cannot "play God" in this matter: for it is surely not my place to suggest just where, when and how to best dispense Divine Judgment...

all *I* can do, then, is (as I ever try to do on The Green Papers) opine upon the mere application of Civil (Secular) Justice.

In his 1980 work, The Law of the Land: the Evolution of our Legal System (a concise- where not also easily readable [for a layman]- examination of Common Law and its relationship to our own legal/political processes here in the United States: highly recommended by me!), the late Charles Rembar noted- re: the common phrase 'Law and Order'- that a lawful society can tolerate at least some disorder, while an ordered society is not necessarily lawful (else, Fascism [or, for that matter, Absolute Monarchy] might still be the modern [small 'r'] republican ideal [as it once was for a Later Roman Republic accustomed to Triumvirates and Dictators])...

likewise, even under those pressures created by a 9/11 or a Boston Marathon Bombing, it serves our constitutional and legal system- as well as we ourselves- not at all well to so readily depart from our own constitutional and legal norms.

Justice David Davis, so it seems, would- had he lived long enough (he died some six decades before Father Arthur Terminiello found himself within that chain of events which would lead to Justice Jackson's warning)- have had nothing much to do with fears of "constitutional suicide": for him, as he himself wrote (and so I quoted at the very start of this piece), "the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence"...

I wholeheartedly agree (my own faith in the American Constitution[s] does not allow otherwise) and, thus, there is no good reason *I* can fathom for not treating Dzhokhar Tsarnaev as an ordinary criminal defendant while the ensuing legal process (one that is, indeed, due him!) itself plays out.

Modified .