Thus warns Justice Antonin Scalia in his scathing dissent in yesterday's decision, Boumediene v. Bush. Regardless of Scalia's other arguments, and his dissent was an exhaustive display of obeisance, the core flaw in his argument is right here:
[This decision] will almost certainly cause more Americans to be killed.
Join me after the jump for a critique explaining why Scalia's argument is fundamentally, inarguably un-American.
Yes, Justice Scalia, Americans will die. Regardless of the decision in Boumediene, Americans will die. Each and every one of us. That is perhaps the only certainty in life. And our Framers understood that, perhaps better than modern Americans do.
Those living in the late 18th century were more familiar with death than we are today. More of their children died in childbirth or infancy. They and their friends had shorter life expectancy. Beyond that, most were farmers and raised their own food. That meant slaughtering their own livestock, experiencing death first-hand. They were not insulated from death. It was woven into the fabric of their lives.
It was perhaps for that reason that Patrick Henry could famously say, "Give me liberty or give me death." Or that Ben Franklin could quip, "We must all hang together or we shall surely hang separately." Those who birthed this republic did so knowing they were risking death, and consciously chose the risk of death over submission to tyranny.
Most modern Americans have almost convinced ourselves that death is, well, something that shouldn't happen. Certainly not to us. Most of us have no first-hand experience of it. Our food comes shrink-wrapped on styrofoam trays, rather than having to be slaughtered and dressed. Most of us die in the sterile confines of a hospital, often alone, and almost certainly with the children shooed away lest they be traumatized. We've walled ourselves off from the experience of death, in the vain hope that perhaps it won't know where to find us.
But find us death will. Every one of us, sooner or later.
Our Founders knew that by personal, intimate experience, and because of that they could acknowledge something profound:
The human quest is not about whether you will die, but how you will live.
Seen in that context - of the certainty of death - Patrick Henry's quote does not seem extreme. To risk death in the service of liberty was not a bizarre notion, for death was inevitable regardless. The human quest was about how he would live, not whether he would die. Henry believed that living in freedom, even if doing so risked dying sooner, was better than safely suffering under tyranny into his dotage.
A few years ago, one of the news channels hosted a discussion forum on the balance between security and liberty. One of the panelists said that the panel should begin by recognizing that "those who died on 9/11 have no rights at all." "We must safeguard life," he continued, "first and foremost. The dead have no liberty."
Thus, his argument went, Americans must be willing to give up civil liberties if those liberties get in the way of safeguarding our lives. But that argument only makes sense if you assume we Americans are, somehow, not going to die unless some terrorist kills us. It's a very modern argument, grounded in our insulation from the inevitability of death, our isolation from the experience of death and dying. It's an illusion or worse, a delusion.
Yes, Justice Scalia, Americans will die. Every one of us, sooner or later. That's not at issue, because it's a scientific fact, inherent in our biology. Indeed, it is perhaps what makes our lives worth living, for if we were immortal we would be too careless with our opportunities, too wasteful of our moments. It is the temporary nature of life that makes our joys more joyful, and our sorrows more bearable.
The issue is not whether Americans will die, but how Americans will live. Will we cherish the freedoms our Founders dreamt of, many of whom died to gain for us? Or will we become that most delusional and cowardly of creatures, convinced of our immortality and willing to sacrifice anything for the comfortable lie that we will live forever?
Benjamin Franklin spoke another oft-quoted remark on this topic. "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety."
There is no liberty more essential than the Great Writ. Without that, our other rights are moot, because we have no guarantee of getting into court to protest their denial. Habeus corpus protects every other right we have.
And as Franklin well knew, all safety is temporary. For we will all die.
Justice Scalia, perhaps it's time to wake up and smell your biology. You, too, will die. All of us will. Rather than wishing that were otherwise, we should instead reaffirm our Founders' belief that it is how we live, not how we die, that defines who we are.
"Give me liberty, or give me death" was not rhetoric. It was a profound statement of the human quest, of what it means to be alive.
Honor that, Justice Scalia, and you honor what it means to be an American.