II. WHAT IS "WAR"?

A.

A book subtitled Free Speech in Wartime invites its readers to reflect not only on the conditions under which speech is free, but on the conditions under which the nation is at war. Thankfully, Professor Stone has done an admirable and unprecedented job in mapping the terrain of the former. By comparison, this Article focuses more centrally on the relatively unmapped territory of the latter, at least with respect to First Amendment analysis.

At various points, Perilous Times intimates the importance of our inquiry, "What Is War?" (In fact, that partially explains our interest in the question.) In the introduction to his work, Professor Stone reminds us of the significant fact that "[i]n the entire history of the United States, the national government has never attempted to punish opposition to government policies, except in time of war."⁹ And in the conclusion, as he synthesizes more than five hundred pages of history and analysis of wartime speech suppression, Stone observes: "After two centuries of wrestling with [the question of speech liberty versus national security], we seemed to have reached consensus on two key propositions: the Constitution applies in time of war, but the special demands of war may affect the application of the Constitution."¹⁰ Moreover, in discussing periods of armed hostilities during which expressive rights were violated, Stone frequently uses the more elastic term "episode"¹¹ rather than "war," and describes the 1798 conflict with France as a "half-war."¹² These references, and many others, are clear signs that he was duly mindful of the relevance of the "war" question.

Our inquiry is especially pressing in light of the uncommon challenges that our current political climate poses to civil liberties generally. In Perilous Times, Professor Stone contends that the Bush administration "declared a 'war' on terrorism" as a "rhetorical device to rally the public" and to justify governmental exercise of "extraordinary powers traditionally reserved to the executive in wartime."¹³ He is concerned over the prospect of "a war that would last indefinitely" (a "perpetual war") during which "civil liberties are 'suspended'" and "'emergency' restrictions" imposed as "a permanent fixture of American life."¹⁴ In a public interview, Professor Stone recommends that constitutional parameters may have to be placed upon a "state of war" to ensure the security of First Amendment liberties.¹⁵ Yet, given the already voluminous character of his scholarly enterprise, it is perhaps understandable that he did not devote more ink to an extended analysis of the operative legal concept of "wartime." Stone has identified the issue, but it remains to us here (and many other constitutional scholars and lawyers elsewhere) to problematize.