Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism
by Geoffrey R. Stone
Norton, 730 pp., $35.00
The People Themselves: Popular Constitutionalism and Judicial Review
by Larry D. Kramer
Oxford University Press,337 pp., $29.95
Of the innumerable expressions of patriotism in America, “My country, right or wrong!” is surely the most succinct. Geoffrey R. Stone sets it at the head of his history of free speech in a time of war, not for the truth of it but as exemplifying a much-loved conception of patriotism. Its author was Stephen Decatur, the naval hero who, in 1805, commanded the raiding party that burned the captured American frigate Philadelphia off Tripoli. Today the United States is waging war in the same part of the world, no longer an upstart country avenging insults to its youthful national pride. But to say now that Decatur’s loyal toast scarcely rises above the level of a slogan does nothing to undermine its emotive, unifying power.
Patriotism, however defined, plays a powerful part in Geoffrey Stone’s engrossing history of the fate of civil liberties when the country goes to war. In making his points about the corrosive effects of war, or the rumor of war, upon civil liberties, Stone is far from being an absolutist. At all points he takes the hardheaded view that when a democracy such as ours is under grave threat the rights of individuals have to be balanced against the right of the nation to defend itself against subversion. What interests Stone as a legal scholar is the social pressures and processes by which that often tenuous balance is achieved or undone. Orthodox legal scholarship has seldom made good use of historical evidence or historical methods, deficiencies Martin S. Flaherty has brilliantly analyzed. Stone gives as much attention to the changing historical settings as to the legal and constitutional developments that grew from them. High constitutional principles had to survive and find their meaning in the give and take of everyday politics.
Most of Stone’s book is devoted to modern wars. It begins, however, with the quasi war with France, our erstwhile Revolutionary ally, because the single most blatant instance of using politics as an instrument for repressing civil liberties was coeval with the birth of the American political system as we now know it. Today Americans are commonly heard to say, “I know my rights.” But the men who had taken such pains to add a Bill of Rights to the Constitution, and who had designed the Constitution to deflect the forces of faction and corruption, came to be bitterly divided over the meaning of those rights. Within a decade they had split into two factions, Federalists, led by Alexander Hamilton and John Adams, and Republicans, led by Thomas Jefferson and James Madison, with each denouncing the other for betraying the Revolution, each building a party machine, each sponsoring a party newspaper. Stone takes it for granted that when high principle is reduced to everyday politics, the result is “petty jealousies, partisan squabbling, and deep distrust.” But he notes more ominously that the Founding Fathers of the Republic “were unsure of the constitutional system they had put in place.” And their differences of …