Page:Harvard Law Review Volume 32.djvu/991

FREEDOM OF SPEECH IN WAR TIME 955 "liberty of speech" is no more confined to the speech they thought permissible than "commerce" in another clause is limited to the sailing vessels and horse-drawn vehicles of 1787. Into the making of the constitutional conception of free speech have gone, not only men's bitter experience of the censorship and sedition prosecutions before 1791, but also the subsequent development of the law of fair comment in civil defamation,'^^ and the philosophical specula- tions of John Stuart Mill. Justice Holmes phrases the thought with even more than his habitual feHcity.^^ "The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic hving institutions transplanted from English soil." It is now clear that the First Amendment fixes limits upon the power of Congress to restrict speech either by a censorship or by a criminal statute, and if the Espionage Act exceeds those limits it is unconstitutional. It is sometimes argued that the Constitution gives Congress the power to declare war, raise armies, and support a navy, that one provision of the Constitution cannot be used to break down another provision, and consequently freedom of speech cannot be invoked to break down the war power. ^^ I would reply that the First Amendment is just as much a part of the Constitu- tion as the war clauses, and that it is equally accurate to say that the war clauses cannot be invoked to break down freedom of speech. The truth is that all provisions of the Constitution must be con- strued together so as to Umit each other. In war as in peace, this process of mutual adjustment must include the Bill of Rights. There are those who believe that the Bill of Rights can be set aside in war time at the uncontrolled will of the government.'^ The first ten amendments were drafted by men who had just been through a war. Two of these amendments expressly apply in war.'® A ma- jority of the Supreme Court declared the war power of Congress to ^ Schofield, op. cit., is valuable on the relation of fair comment to free speech. See also Van Vechten Veeder, " Freedom of PubUc Discussion," 23 Harv. L. Rev. 413 (1910). " Gompers :;. United States, 233 U. S. 604, 610 (1914). ^* United States v. Marie Equi, Bull. Dept. Just., No. 172, 21 (Ore., 1918), Bean, J. " Henry J. Fletcher, "The Civilian and the War Power," 2 Minn. L. Rev. no, expresses 'this view. See also Ambrose Tighe, "The Legal Theory of the Minnesota 'Safety Commission' Act," 3 Minn. L. Rev. i. " Amendments III and V.