The P-I responded to my inquiry regarding their amazing claim that
The constitutional standard for warfare is for the United States to face a "clear and present danger."The paper's reader representative e-mailed the response from editorial page editor Mark Trahant
"Clear and present danger" does appear in the Constitution, but not in the context of war-making. It's in Article 1, Section 1, pertaining to the states' use of militias. That is one of three ways the term has come to be used.The Constitution does not contain the phrase "clear and present danger" in Article I Sec. 1, or anywhere else. The Byrd Amendment does not contain the phrase "clear and present danger" either, (although John McCain used it in the debate over the Byrd Amendment). Neither John McCain nor Robert Byrd are the arbiters for what is, or is not, a constitutional standard. As Trahant mentions, it is at best a debatable standard (an aspiration for a standard, really) used by some of the war's opponents. It is hardly an established constitutional standard, which to the best of my understanding would be established by federal court rulings, not by editorial writers. Furthermore, it is not a precise standard, and if applied to the other wars in our history, it's hard to say which ones would have been justified by this fictional "standard". Of course I got the impression that the paper believes that "clear and present danger" is the constitutional standard for warfare because that was clearly stated in the editorial. Did I mention that the editorial closes withAnother is the one you pointed out, originating with Schenk vs. the United States, and pertaining to the right of self-expression.
The third, when to declare war, has developed over time, through court rulings and political discussions. In that sense, it is a debatable standard, but its usage is well established.
It was the phrase used commonly used by opponents of the war in Iraq to question whether the war was legal under the Constitution. One example was Sen. Robert Byrd, who used it in the so-called Byrd Ammendment that failed to gain approval. President Bush, in defending the war, has used the phrase "imminent threat."
We can see how you would get the impression that "clear and present danger" is used in the Constitution as the standard for war-making. Sorry for the confusion.
We also need to believe that the Constitution was followed and Iraq posted a clear and present danger.It is not "confusion" that the P-I needs to apologize for, but for irresponsibly and either ignorantly or dishonestly misinforming its readers.
UPDATE Boalt Hall Law School grad Xrlq also comments.
Posted by Stefan Sharkansky at June 10, 2003 06:09 PMNo. No. No. Mark Trahant is "spinning" it. Dishonestly or ignorantly.
There is no "clear and present danger" test in the Constitution. There is "imminent Danger" in Article I, Section 10, but that is a limitation on the states' ability to keep armies and engage in war. This is merely a nod to the federal government, not a standard by which declarations of war are judged.
There are no "court rulings" applying the "clear and present danger" test to the President's commanding the armed forces or the Congress' declarations of war. Clearly a separation of powers problem there.
As for the use in political discussions. Sure, but so what?
The only "clear and present danger" test was promulgated by Justice Holmes in Schenck v. U.S.
39 S.Ct. 247 (1919)and which was reiterated and refined by Holmes and Justice Brandeis in later cases - all arising before the era of World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched inferences which, if true, would establish only technical or trivial violations.
Holmes and Brandeis proposed "clear and present danger" as a test for the sufficiency of evidence in particular cases. There is no other "clear and present danger" test for declarations of war or the use of military force.
Civics. Law. We need more civics and law to be taught in our schools. Then it will be more difficult for "them" (all of the "thems" out there) to dupe the readership and the citizenry.
Bite on Shark!
Posted by: ipsofacto on June 10, 2003 08:23 PMSome have it right, on who exactly is controlling US:
Free US from Saudi Arabia
And there's the "imminent threat" lie, again. Bush didn't say Iraq was an imminent threat, he said we can't afford to wait for Iraq to be an imminent threat.
I love the weasel-phrasing: "Bush has used the phrase". Well, yes, but not in the way they claim.
Posted by: Robert Crawford on June 11, 2003 06:40 AMSouthern California Law blog has picked it up as well and declared a fisk-for-all.
Posted by: Xrlq on June 11, 2003 11:40 PMWhat a "marooon." The only time that I know of where the phrase "clear and present danger" has a constitutional dimension involves, of course, the First Amendment, where speech can be suppressed based on its content. Naturally, the PI reporter probably picked up only one thing from the Con Law course he or she audited and has decided that that concept applies to everything.
Posted by: Peter Sean Bradley on June 16, 2003 12:23 PMAn interesting note, alluded to above, is that Art. I, Sec. 10, Clause 3 provides that States "actually invaded, or in such imminent Danger as will not admit of delay" may engage in war. One must admit that this is very similar to "clear and present danger," and arguably the two are essentially identical when converting 18th century language to 20th-21st language.
But what does this imply? To me, it implies almost certainly that the Constitutional standard, to the extent such a thing could be said to exist, must necessarily be MORE lenient than this. Why? Because Art. I, Sec. 8, Clause 11 grants exclusively to the US Congress the power to declare war and Art. II, Sec. 2, Clause 1 designates the President as Commander in Chief of all Troops, with Art. I, Sec. 10, Clause 3 precluding states normally from maintaining troops or war ships without the consent of Congress.
So the Constitution prefers that the federal government, and not the states individually, wage war. But once the nation reaches a state of "clear and present danger," then very likely(almost by definition) one or more of its states will also be facing a "clear and present danger," at which point they would be free to act independently. Therefore, in order that the federal government may normally be the body which controls when and where war is fought, it is necessary that its threshold for entering war be lower than that foisted upon the states.
In truth, there is but one Constitutional standard for when war should be declared: When Congress, in its sound judgment, so declares, under the President's careful command.
Posted by: Nole on June 16, 2003 12:43 PM