C.

Today's "war on terrorism" and other former military "episodes," to borrow Professor Stone's term, reflect the transition from the formalism of the Founders to the functionalism of contemporary actors. That is, they represent a move away from a fixed definition of war to a fluid concept of war, a shift from a determinate idea to an indeterminate one. In many ways, the modern concept of war is so open-ended as to resemble the work product of a Derridian deconstructionist.³⁵ In this realm, indeterminacy governs. There are no methodological criteria by which to judge the excesses of power. While such indeterminacy may be tolerated at a philosophical or literary level, it wreaks havoc at a more pragmatic constitutional level when applied to a First Amendment context such as that governed by Schenck and its progeny.

If the concept of "war" - Schenck's predicate for diluting free speech rights - now has evolved to a point where it is beyond any meaningful constitutional definition, then the mere invocation of the word takes on talismanic powers. For example, if the "war on terrorism" becomes the touchstone for First Amendment analysis, and if that phrase is largely devoid of any precise meaning, our free-speech freedoms could appreciably be diminished in "wartime." When the idea of "war" is so elastic that it need not be declared by Congress, or declared against a sovereign state, or exist for a specified period of time, then an "Imperial Presidency" might well abridge First Amendment rights with impunity.