Boyd Law scholar: Constitution inviolable 

This article has been read 294 times.

Guest speaker argues the U.S. Constitution is a ‘suicide pact’

The U.S. Constitution may hold the highest place in American jurisprudence, but there is a lively debate among law scholars as to whether it should emphasize national security or liberty.

In the latest lecture in the University Forum series on Wednesday night, professor Peter Brandon Bayer of the UNLV William S. Boyd School of Law argued that the Constitution prioritizes individual liberty over safety.

Bayer discussed the idea that at different points in American history, leaders have resorted to violating the Constitution in order to preserve the United States as a country or to save the lives of its citizens.

These people, Bayer said, have used the argument that the Constitution is not a death pact.

Bayer argued that it is a suicide pact.

He related the story of an ACLU lawyer who defended the free speech of Nazis in America at the risk of losing major donors and drawing criticism from the public.

“If these are the principles that are so basic to your society that they are in the document that defines what your society is and why it exists, they have to be the principles worth dying for,” Bayer said. “But they have to be the principles that the entire society thinks more important than even the life of the society itself.”

Bayer argued against the approach he called a “constitution of necessity,” which he believes was adopted by the George W. Bush administration.

Bayer said that Thomas Jefferson adopted a similar stance in the later years of his presidency.

Bayer also said that the “constitution of necessity” theory suggests that if there is a great enough danger to national security, the government can suspend or limit any constitutional right in order to avoid the catastrophe.

Abraham Lincoln suspended the writ of habeas corpus, the right to be released from unlawful detention, in 1862 at a time when the nation was embroiled in the Civil War.

Bayer’s main argument centered around the concept of “deontology” — the idea that morality is unchangeable and that there is one right answer regardless of the consequences.

This meant, Bayer said, that the immutable principles of the Constitution could not be violated or bent no matter how astronomical the risk is because they come from “nature.”

Bayer discussed a hypothetical situation in which a captured terrorist knows the location of bombs that would kill millions of people but in order to convict him, lawyers would need to show national security secrets to the opposing lawyer.

Bayer posed the question to the audience of what the lawyer should do, to gauge how far they would go to save lives and how willing they were to infringe on the man’s rights in order to save people or serve a greater good.

While not everyone agreed with Bayer’s arguments, many found them credible.

Thomas McAffee, a Constitutional law professor at Boyd, voiced disagreement with Bayer’s sentiments by disputing the claims that there are such things as indisputable truths or moral “rights.”

He said he believed that truth was determined by people that govern and that those people change.

McAffee argued that deontology is not relevant to the issue, as the Constitution has changed just as much over time as people have.

However, Bayer argued that if terrorists were not granted their rights outlined in the Constitution, it would be a disastrous violation of the very principles that underlie the document.

“We would not be [giving] the criminally accused the dignity he or she deserves, even if it is a terrorist,” Bayer said. “He is a human being charged with a crime. He has to be treated with the dignity of a human being.”

Contact Kenneth Minster at kenneth.minster.ry@gmail.com.