One possible avenue of recourse ¹²⁰ is that whenever the government invokes "war" as a justification for abridging First Amendment freedoms, the judiciary should, in Professor Stone's words, "be especially skeptical"¹²¹ in the absence of an Article I, Section 8 declaration.¹²² This is but another way of saying that the Schenck predicate for diminishing free-speech protections must be satisfied.

The value of this approach is that it allows an insistent Presidency to perpetuate wartime hostilities without judicial intervention, but disallows encroachments on the First Amendment during that period unless the President is willing and able to obtain from Congress a formal declaration of war. As a practical matter, whether this approach actually results in greater protection of expression will depend, as most such issues of constitutional rights generally do, on the liberty-loving character of the political actors in office at the time. As a logical matter, however, the advantage is that a legal state of "war" declared and executed by two separate governmental bodies must be distinguished from the political rhetoric of a "time of war" as the predicate to speech-restrictive executive measures.

In other words, the Executive cannot have it both ways: it cannot engage in "self-declared war" and simultaneously use "war" as a justification for suppressing speech. Of course, if the Court chooses not to engage in Schenck predicate analysis,¹²³ it can always employ, as we already have discussed, the modern methodologies of vagueness, substantial overbreadth, content discrimination, prior restraint, and other such devices.

Whenever the war question is in doubt, Professor Stone counsels "particularly careful scrutiny."¹²⁴ We fully agree. But to do so, law students and lawyers alike should learn history's most valuable lesson: the present must not repeat the errors of the past. Perilous Times, in this respect, is an invaluable resource. It ably recounts a history, much of which should not be repeated.

In the acknowledgements to Perilous Times, Geoffrey Stone recognizes two of his most significant mentors: University of Chicago Law Professor Harry Kalven, Jr., a celebrated free speech scholar, and Justice William J. Brennan, Jr., one of the Supreme Court's greatest luminaries in First Amendment law. Stone puts it humbly: "I hope this book would have pleased them." ¹²⁵

Given the monumental achievement of this work, Stone can be confident that they would have been very pleased, indeed. For we suspect that this will be a book with a long and worthy history.