be restricted by the Bill of Rights in Ex parte Milligan,[1] which can- not be lightly brushed aside, whether or not the majority went too far in thinking that the Fifth Amendment would have prevented Congress from exercising the war power under the particular cir- cumstances of that case. If the First Amendment is to mean any- thing, it must restrict powers which are expressly granted by the Constitution to Congress, since Congress has no other powers.[2] It must apply to those activities of government which are most liable to interfere with free discussion, namely, the postal service and the conduct of war. The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for, as Bagehot[3] points out, once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest. Nevertheless, there are other purposes of government, such as order, the training of the young, protection against external aggres-
- ↑ 4 Wall. (U. S.) 2 (1866). The judges all agreed that Congress had not authorized the trial of the petitioner by a military tribunal. The majority, per Davis, J., took the ground that the government cannot have recourse to extraordinary procedure until there are extraordinary conditions to justify it and that imder the Bill of Rights the decision of Congress that such procedure is necessary can be reviewed by the courts. The minority, per Chase, C. J., declared that Congress is sole judge of the expediency of military measures in war time, and that the war power is not abridged by any Amendment. The majority view on this matter may be accepted by one who questions their opinion that mihtary tribunals are never justified outside the theater of active military operations in a place where the civil courts are open. It may be that military tribunals are necessary where the machinery of the civil courts cannot adequately meet the situation (3 Minn. L. Rev. 9), but the civil courts must eventually decide whether their machinery was adequate or not. Otherwise, in any war, no matter how small or how distant. Congress could put the whole coxmtry vmder military dictatorship.
- ↑ United States Constitution, Art. I, § i. "All legislative powers herein granted shall be vested in a Congress." Amendment X. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." "This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent." Marshall, C. J., in McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 405 (1819). See also Taney, C. J., in Ex parte Merryman, Taney, 246, 260 (1861), and Brewer, J., in Kansas V. Colorado, 206 U. S. 46, 81 (1907).
- ↑ "The Metaphjrsics of Toleration," in his Litebary Essays, Silver Library edition, II, 208 (Longmans).
