Constitutional Brinkmanship and the Green New Deal

We need not sacrifice freedom of expression, our autonomy, our right to self-rule to survive what lies ahead. But if we allow our current, cramped understanding of who the Constitution serves to preclude climate mitigation, the horizon of possibilities will be increasingly limited by the physics of a rapidly warming world.

“The Constitution is not a suicide pact.” What began as a quotation from Supreme Court Justice Robert H. Jackson’s dissent in the 1949 opinion Terminiello v. City of Chicago has since morphed into an aphorism for a litany of reactionary politicians and pundits, among them President Trump. In its adoption, the underlying concept—constitutional principles must occasionally be sacrificed to preserve higher precepts-—has violated core leftist values. However, the “Constitution is not a suicide pact” framework reminds us that the masses ultimately have the ability to choose society’s rules. Taking this lesson seriously and reimagining our constitutional order as mutable to the will of the governed may help clarify how the left can address climate change.

Given its history of use, it is understandable why leftists view Jackson’s dissent with suspicion. During the ongoing War on Terror, the anti-suicide pact framework has been deployed with varying degrees of sophistication to justify rampant government abuses, especially against Muslims. With slight variations depending on whether the misdeed is warrantless wiretapping, enhanced interrogation, the assassinations of American citizens, or the exclusion of an entire group of immigrants, the exculpatory defense is almost always the same: our country is in imminent danger, and we must act quickly and decisively regardless of what the Constitution might have to say. As zealots like former Vice President Dick Cheney and Defense Secretary Donald Rumsfeld have insisted, any actions taken by the state must be roughly proportional to the threat: accordingly, if the threat is sufficiently severe, the state can take more aggressive actions to protect national security.

The courts have also long indulged this whitewashing, contravening not only civil liberties but also long-standing procedure in the process. In the 2004 decision Hamdi v. Rumsfeld, the Supreme Court ruled that the Authorization for Use of Military Force Act sanctioned the indefinite detention of American-born Yaser Hamdi. The Court also ruled that Hamdi had the burden of proving that his detention was unlawful; the government in turn could use potentially unreliable, hearsay evidence to justify his continued detention. In Trump v. Hawaii, a decision handed down just last year, the Supreme Court held that the President could restrict immigration from six Muslim-majority nations, despite his calls for a “total and complete shutdown of Muslims entering the United States” during his presidential campaign and repeated, bigoted anti-Muslim remarks during his presidential campaign and time in office. Although the Court never explicitly invoked the anti-suicide pact framework by name in either decision, the theory’s influence is evident in the Court’s cynical and haphazard balancing of national security prerogatives and civil liberties.

However, as the Court’s fast and loose procedural approach to achieve its prefered outcome in these two cases suggests, there are limits to the right’s view of the anti-suicide pact framework’s flexibility. Those limits are further clarified when the Supreme Court’s approach to the War on Terror is contrasted with its treatment of structural racism. In McCleskey v. Kemp, a 1987 decision, the Supreme Court rejected black capital defendant Warren McCleskey’s claim, based on an empirical study conducted by Professor David Baldus and others, that Georgia’s capital punishment regime was tainted with racial bias and therefore violated the Eighth and Fourteenth Amendments. The Court found that while there was some evidence racial bias impacted Georgia capital sentencing generally, McCleskey had failed to prove that his sentencing was tainted by racial bias. More importantly, the Supreme Court rejected McClesky’s Eighth and Fourteenth Amendment claims in part because reversing his death penalty sentence on those grounds would “[throw] into serious question the principles that underlie the entire criminal justice system.” In contrast to the Supreme Court’s calculus in the War on Terror cases, it was precisely the severity of the threat, here structural racism, that gave the Court pause. And that should give us pause.

It is true in a superficial sense that the anti-suicide pact framework entails the balancing of constitutional principles. If McCleskey imparts any lessons, though, it is that the courts and the state are only willing to bless sacrifices that benefit the powerful and preserve the status quo. This one-sided approach, where the infringement of civil liberties is characterized as pragmatic while progressive action is entirely foreclosed, reinforces the false and dangerous notion that the Constitution is the best we can hope for—that our choices are either an increasingly precarious status quo, where the masses have rights but no power, or an oligarchy where the masses have no pretensions of wielding power but are fed and kept safe. In a society where the Constitution is supreme and subject to contravention only by national security or law enforcement interests, there is no alternative. If our Constitution promises a right to equal protection but the state offers only austerity, an autocrat’s promise to bring the jobs back, reduce crime, and cow our enemies into submission may be hard to resist.

This siren call of autocracy will prove increasingly difficult for the masses to resist as the ongoing climate catastrophe deepens. 2018 saw record rains, storms, floods, heat, and fires. US carbon dioxide emissions increased by more than three percent, the largest single-year increase in eight years. The IPCC released a report providing compelling evidence that humanity may have as little as twelve years to prevent a temperature increase of 1.5 degrees Celsius and forestall the death and immiseration of millions.

This allure to tyranny is amplified by the Democratic Party leadership’s hapless adherence to the anti-suicide pact framework, as typified by the leadership’s recent rejection of a proposed fossil fuel donations ban, which they have argued would violate the First Amendment. 

It is unlikely that the proposed ban would violate the First Amendment. To be sure, if the ban were adopted, fossil interests would argue that the ban chills, dilutes, or taxes protected speech. It is not impossible to imagine the ban being characterized as a prior restraint, restricting speech before it is made. However, there are a number of legal issues with the leadership’s position. First and most importantly, it is unclear whether a proposed Green New Deal committee member or even a fossil fuel donor would be harmed by the proposed ban in a way the law recognizes. Members of Congress have First Amendment rights, but only in their capacity as private citizens or as employees. Oil, gas, and coal donors undoubtedly have the First Amendment right to make political contributions; however, it is unclear whether this right could override a congressional panel’s decisions on its membership. Moreover, what speech or expressive conduct is even implicated by the proposed ban? Monetary contributions? A fossil fuel-funded member of Congress attempting to join the proposed committee? A fossil fuel company trying to associate with a prospective committee member who receives fossil fuel donations? It is doubtful that all of this conduct would be protected speech. The government speech doctrine further muddies the waters.

Its legal merits aside, the fact that the Democratic Party leadership has adopted this line of attack is frankly suicidal in light of the Supreme Court’s increasing weaponization of the First Amendment to block economic regulations. It not only legitimizes future, dubious attacks against the Green New Deal, but also validates the sentiment that the Constitution indisputably restricts what the masses can hope for. The full range of solutions encompassed within the Green New Deal will run against a Constitution designed by the Framers to preserve a barbaric political economy. Depending on how the federal government decides to nationalize the fossil fuel industry, it is possible that industry stakeholders might try to delay those efforts by contending they were not fairly compensated as required under the “eminent domain” clause. Indeed, recent court decisions have increased the likelihood of a confrontation between decarbonization and constitutional principles. To use just one example, the Supreme Court’s 2011 National Federation of Independent Business v. Sebelius ruling, which upheld the Affordable Care Act, limited the federal government’s ability to regulate the economy and impose restrictions on states that accept federal funds. This could hinder the federal government’s ability to delegate the administration of green workforce programs to states. And if the Democratic Party leadership’s handling of the Green New Deal Committee is any indication, there is a good chance that its response to a credible constitutional challenge would reaffirm the same false choices that would inevitably justify climate despotism.

With that in mind, it is not illiberal for the Democratic Party to acknowledge in this present moment that the Constitution must be balanced against decarbonization. If the Constitution permits the state to indefinitely detain suspected militants on the basis of flimsy evidence or prohibit Muslim immigrants from entering the United States on the basis of  racism, religious bigotry, and xenophobia, then it should permit the nationalization of the fossil fuel industry in accordance with the reasonable terms and conditions set by the state. It should permit the federal government to impose stringent restrictions on states administering green workforce programs. Failure to make this argument with frequency and conviction is, well, suicide.

The idea that the Left should take up the anti-suicide pact framework to bolster a Green New Deal is admittedly counterintuitive,  in light of how the courts and the state have used this theory to justify an increasingly vicious assault on left principles and marginalized communities. But underlying the anti-suicide pact framework is the principle that who we are as a society, and, more importantly for the Left, how we define the rules that order society, is not permanently fixed by the Constitution or in any single, specific site. At its core, the anti-suicide pact framework is an implicit acknowledgment that there is something higher than the Constitution: the will of the people. This is something the Left can work with. We can create new terms, or a new pact entirely. We could abolish the Senate. We could finish FDR’s work and enshrine the Second Bill of Rights. We could give binding legal force to the UN’s Declaration on the Rights of Indigenous People. Our constitutional order can and should be redefined in ways that broaden and give substance to our formal, limited political rights. Our salvation from the rising seas and coming droughts does not rest with strongmen. We need not sacrifice freedom of expression, our autonomy, our right to self-rule to survive what lies ahead. But if we allow our current, cramped understanding of who the Constitution serves to preclude climate mitigation, the horizon of possibilities will be increasingly limited by the physics of a rapidly warming world.

During a world economic forum in Davos, Switzerland, then-UN Secretary General Ban Ki-Moon, more than sixty years after the Terminello decision, characterized our current extractive economic model as a “global suicide pact.” Ban urged countries to support sustainable development, invest in technological innovation, and engage in revolutionary action while also asking corporations, the main drivers of anthropogenic climate change, to invest in emerging economies and increase energy efficiency.

If our society is to have any hope of avoiding the siren call of autocrats in the wake of ongoing ecological collapse, we must pair the urgency of Ban’s (correct) diagnosis with a politics capable for the moment. To rest our hopes on the goodwill of corporations—the same corporations that argue that they are not accountable for years of climate change disinformation and propaganda, that contend that their actions are protected by the First Amendment, and whose crackpot legal theories inform the current struggle over the fossil fuel donations ban—is a form of surrender. To rest our hopes, as the Democratic Party seemingly has, on a flawed constitution, premised at its inception on the defense of an exploitative economic system, would indeed be signing a suicide pact. It would spell the tyranny of borders, socialism for the rich and crumbs for the have-nots. We must build something new, either on old ground or new, that gives full force to the ideals and principles cynically deployed to justify a fundamentally unjust system. An unchained Green New Deal is as good as any place to start.

The author is a lawyer. Due to employer considerations, he has asked to remain anonymous.

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