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Suspending the Constitution

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An excellent article at FindLaw about the role of the Constitution during wartime. The gist of the article can be summarized by this quote: "the point of this doctrine, it seems, is to excuse deviation from what are ordinarily believed to be basic norms, by reference to the unacceptable costs of adhering to these norms." The article dwells too much on the Emancipation Proclamation, which I don't think is nearly as relevant as the author claims it is (the author's discussion of it comes perilously close to claiming that it was reasonable to view slaves as property), but the rest of the article is fascinating and frightening. I've read a fair bit about the Schenk v. U.S. case (1919), which was where the "clear and present danger" test was first described; that's the case in which the majority opinion, delivered by Chief Justice Oliver Wendell Holmes, said this: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." What I hadn't noticed is that Debs v. U.S. was argued and decided almost simultaneously. In that case, too, the US Supreme Court affirmed that freedom of speech could be suspended during wartime (specifically, that it was illegal to attempt to obstruct military recruitment efforts by voicing opposition to the war), but I hadn't thought to connect either of these to the current situation. More on this next entry.

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