Yale University - Law School
June 30, 2014
Cardozo Law Review, Forthcoming
This paper provides the first account of the term “public danger,” which appears in the Grand Jury Clause of the Fifth Amendment. I argue that, in light of historical records from the seventeenth and eighteenth centuries, the proper reading of “public danger” is a broad one. On this theory, public danger includes not just impending enemy invasions, but also a host of less serious threats (such as financial panics, jail breaks, floods, fires, natural disasters, and plagues). This broad reading is further 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 tools of interpretation — such as an intratextual analysis of the text of the Constitution and a survey of other legal doctrines that use a “public danger” standard — also counsel in favor of an expansive reading. The paper then unpacks the practical implications of this reading. First, the fact that the Constitution expressly contemplates “public danger” as a gray area between war and peace informs the ongoing scholarly debate about whether the global war on terror is an endless war, a “wartime,” or something else entirely. “Public danger” provides a method of thinking about terrorism that is already built into the Constitution, and therefore calls into question the elaborate but nonconstitutional theories that some scholars have proposed to help order our thinking about terrorism. My second argument is that, since the Founders recognized the concept of “public danger” but yet declined to extend enhanced authority to the President during these periods, the Grand Jury Clause may operate as an implicit limitation on executive power in the post-9/11 era. Third, I suggest that a broad reading of public danger would allow Congress to massively expand the jurisdiction of courts martial merely by altering the definition of the phrase “actual service” in the Fifth Amendment.
Number of Pages in PDF File: 30
Keywords: public danger, national security, terrorism, grand jury, fifth amendment, legal history, constitutional lawAccepted Paper Series
Date posted: July 2, 2014 ; Last revised: August 16, 2014
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