Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

“Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow....”[744]

The significance of this latter opinion would appear to derive from the fact that by employing the descriptive adjectives “silly” and “puny” Holmes transformed his clear and present danger doctrine into a vehicle for opposing conviction of persons for what would seem, on the face of the record, possibly a more aggravated offense than Schenck’s. Thus the “clear and present danger” test in application may become entangled with the sentiment of the person applying it. Secondly, it is important to note the appraisal which Holmes made as to the military significance of American intervention in Russia. In his estimation, had it been thwarted our war effort would not have been effected. As a dissenter Holmes, with the support of Brandeis, persisted in applying the “clear and present danger” test in a number of later decisions, notably the Gitlow case and the Whitney case.[745]

In the post-World War II era, however, this test definitely appears to have been radically altered, if not conclusively rejected. Thus in Dennis v. United States, sustaining the conviction under the Smith Act[746] of eleven top Communist Party leaders, Judge Learned Hand, presiding over the U.S. Court of Appeals for the Second Circuit, stated:

“The phrase, ‘clear and present danger,’ has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect.... It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must find their way as they can. In each case they must ask whether the gravity of the ‘evil,’ discounted by its improbability, justified such invasion of free speech as is necessary to avoid the danger....

“... When does the conspiracy become a ‘present danger’? The jury has found that the conspirators will strike as soon as success seems possible, and obviously, no one in his senses would strike sooner. [Meanwhile, the Communist leaders claim the right to continue their activities.] That position presupposes that the Amendment assures them freedom for all preparatory steps and in the end, the choice of initiative, dependent upon the moment when they believe us, who must wait the blow, to be the worst prepared to receive it.”[747]

By substituting “probability” for “imminence” in time, Hand substantially changed the clear and present danger doctrine. On appeal the Supreme Court, with certain modifications, in effect affirmed Hand’s redefinition.[748]

In connection with these examples of judicial application of the “clear and present danger” doctrine it is equally pertinent to set forth Chief Justice Hughes’ famous dictum that “the war power of the Federal Government ... is a power to wage war successfully,”[749] and to refer to the decisions arising out of World War II Japanese curfew and relocation[750] and rent control.[751] The Court’s approach is epitomized by Black’s reasoning in his majority opinion in Korematsu v. United States:

“But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger....

“... hardships are a part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure.”[752]

Whether the Court is competent to fulfill the role of protector of the Constitution in wartime is highly debatable. Is the Court capable of performing the task, even if time were available? Obviously not. It does not have the information requisite for determination of current needs and the adequacy and appropriateness of government actions to meet them. It cannot be presumed to possess the fund of knowledge essential for appraising issues largely military in nature, and, consequently upon the advent of actual hostilities, it invariably displays a reluctance to countermand the executive and legislative branches, no matter how extreme their action. Furthermore, the judicial process with its haphazard accretion of cases, the manifest capacity of government to make cases moot, or failure to prosecute, frequently makes it impossible for the Court even to review significant controversies produced by action of the political departments. For every Milligan or Duncan who manages to bring his case to the Court (usually for post mortem relief), there are hundreds who submit to abusive governmental action without ever contesting the validity thereof. This alone affords adequate demonstration that the court is ineffective in maintaining constitutionalism in time of war. For fulfillment of this objective vigilance on the part of Congress and the Executive no less than the electorate is imperative.