The Constitution as Suicide Pact

Michael Paulsen has written a wonderful, creative article. In his characteristically engaging manner, he argues that we ought to employ a "meta-rule of construction" and consistently construe the Constitution to avoid "constitutional implosion." Where such "saving" constructions are impossible, however, the law of self-preservation must take precedence. Priority must "be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions."'Professor Paulsen does not thereby countenance constitutional "violations," at least in his own mind. To engage in regime and constitutional preservation, even at the expense of particular constitutional provisions, is to act consistent with the Constitution rather than contrary to it. According to Professor Paulsen, the Constitution contains a general self-preservation exemption (the rule of necessity) to its seemingly iron-clad prohibitions and rights. Who favors constitutional suicide? More accurately, who favors a constitution that lacks an emergency provision authorizing the President to suspend some or all of its parts? Let me be the first to fall on my sword. Though I count myself as one of the many admirers of Professor Paulsen's work, I do not believe that he has made his case, at least not yet. I question whether the Constitution contains a "metarule of construction" which requires that the "Constitution should be construed, where possible, to avoid constitutionally self-destructive re-suits." Moreover, I doubt that the Constitution grants the President a latent and more powerful authority to sacrifice constitutional provisions in order to preserve and defend the Constitution and nation as a whole. In my view, though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it.