The very hypothesis that Schenck's legacy might survive is, no doubt, anathema to our fellow liberal and libertarian free-speech advocates. While raising such a specter, we take some comfort that no less a bona fide liberal constitutionalist than Bruce Ackerman makes a very similar argument about the discredited wartime doctrine of Korematsu v. United States.⁸⁸ "Korematsu has never been formally overruled," Ackerman observes.⁸⁹ "It is bad law, very bad law, very very bad law. But what will the Supreme Court say if Arab Americans are herded into concentration camps? Are we certain any longer that the wartime precedent of Korematsu will not be extended to the 'war on terrorism?'"⁹⁰ Pondering the possibility of "another devastating terrorist attack," Ackerman asks: "If Hugo Black fell down on the job, will his successors do any better? . . . The war with Japan came to an end, but the war against terror will not." ⁹¹

If "Korematsu 2" is at all feasible⁹² , why not "Schenck Redux?" Simply put, given the times and the prevailing government mindset, one discounts Schenck's legacy at his peril. It is not entirely clear to us that Professor Stone would, in all instances, discount that legacy. For example, he has characterized some of the Bush administration's wartime actions as "shameful" and "breathtaking in [their] excess."⁹³ Moreover, while evaluating the political response to the September 11th terrorist attacks as "measured in historical terms," he declared in a newspaper interview that "all bets are off should the nation fall victim to another attack." ⁹⁴ In other words, Schenck could have a constitutional come-back.

suppose that a future wartime case might explicitly overrule or ignore the deferential Schenck to Dennis line of authority in favor of the far stricter contemporary Brandenburg formula. What then? To what extent, if any, might the Brandenburg analysis be affected by the presence of "wartime" as the context for governmental speech regulations? What assurance would there be that Brandenburg would not fall victim to the same kind of mangled interpretation that derailed the "clear and present danger" test when applied to the facts in Schenck and Debs? "Only judicial construction during the next 'Red Scare' or 'McCarthy period,'" Professor David Rabban has remarked, "will reveal the extent to which [Brandenburg's] relatively protective test can induce judges to uphold free speech values in times of crisis." ⁹⁵ Indeed, to expect a "wartime" Court to disregard existing precedent, to prefer readily distinguishable First Amendment doctrine, and then to apply it liberally may prove to be a Sysiphean feat.