Legal Definition of Public Danger

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n. the doctrine set out in an opinion statement by Oliver Wendell Holmes, Jr. in Schenk vs. United States (1919), which is used to determine whether a situation poses a threat to the public, individual citizens, or the nation. If so, First Amendment freedom of speech, press, and assembly may be restricted. His famous example was that no one should shout «fire» in a crowded theater (speech), but other cases involved printing a list of names and addresses of CIA agents (press) or rounding up a mob of lynch mobs (rally). This document provides the first account of the term «public danger» that appears in the grand jury clause of the Fifth Amendment. I submit that in light of the historical records of the seventeenth and eighteenth centuries, the correct interpretation of «public danger» is broad. According to this theory, public danger includes not only impending enemy invasions, but also a variety of less serious threats (such as financial panics, prison breaks, floods, fires, natural disasters, and epidemics).

This broad interpretation is also supported by constitutional history. In 1789, the First Congress rejected an amendment that would have replaced the phrase «public danger» in the proposed text of the Fifth Amendment with the narrower term «public invasion.» Several other interpretive tools – such as an intratextual analysis of the constitutional text and an overview of other legal doctrines that use a «public danger» norm – also argue for a broad reading. The article then reveals the practical implications of this reading. First, the fact that the Constitution explicitly views «public danger» as a gray area between war and peace informs the ongoing scientific debate about whether the global war on terror is an endless war, a «time of war,» or something else. The «public danger» offers a method of thinking about terrorism that is already enshrined in the Constitution, and thus challenges the elaborate but unconstitutional theories that some scholars have proposed to order our thinking about terrorism. My second argument is that, since the founders recognized the concept of «public danger» but nevertheless refused to give the president broad authority during these periods, the grand jury clause could act as an implicit limitation of executive power in the post-9/11 era. Third, I suggest that a broad interpretation of public danger would allow Congress to massively expand the jurisdiction of courts martial simply by changing the Fifth Amendment`s definition of «actual service.» Box 6000, Dept F, Rockville, MD 20849, USA «Gedicks on Religion & Personhood| Main | Salter & Hebert on Constitutional Monarchy » 248 E 35th Street, New York, NY 10016, USA 810 Seventh Street NW, Washington, DC 20531, USA.