The Constitution is not a suicide pact,” wrote Supreme Court Justice Robert H. Jackson in 1949. He was right. Even though there is no provision in our Supreme Law saying so, it is inherent, if unstated, in every law. We cannot interpret the Constitution—or any law—in such a way that sows the seeds of its destruction. The Constitution exists to constitute a nation, just as a law exists to govern those within its jurisdiction. If one provision were to lead to the destruction of those committed to abiding by the law, either by crowding out all other laws or commanding an untenable outcome, the whole purpose of having law in the first place would be defeated.
The Jewish tradition includes similar teachings, with the caveat that all but three commandments may be broken in order to save a life. “Keep my laws and my commandments,” reads Leviticus, “that man can perform and live by them.” The sages of the Talmud added a gloss: “Live by them, and do not die by them.” Law, even divine law, is for the living. It cannot counsel outcomes that would prevent further performance of commandments.
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Tal Fortgang is an adjunct fellow at the Manhattan Institute. He was a 2023 Sapir Fellow.
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