These historical events and others paint a portrait of Executive "self-declared war" powers frequently unchecked by Congress and virtually untouched by the Court. Not surprisingly, academic study of that portrait focuses largely on its separation-of-powers dimensions - that is, on the accretion of Article II Commander in Chief powers at the expense of Article I war powers and Article III judicial review powers. Rarely analyzed, however, are the likely injuries to free-speech liberties resulting from such an aggrandizement of presidential wartime authority.

To date, the theory of a unitary national war power exercised by the Executive without effective restraint has not been formally incorporated into First Amendment jurisprudence. But its relevance cannot be gainsaid. Insofar as the Executive uses "war" as a predicate for diminishing constitutionally recognized rights, and insofar as the Court refuses to cabin the Executive's wartime powers for First Amendment purposes, the constitutional guarantee of expressive freedoms becomes an oxymoron. ⁶⁴ In this respect, political struggles over Article I and Article II wartime powers are likely to forecast judicial determinations of First Amendment wartime rights.