30 Pages Posted: 2 Jul 2014 Last revised: 24 Sep 2015
Date Written: August 9, 2015
This Article provides the first account of the term “public danger,” which appears in the Grand Jury Clause of the Fifth Amendment. Drawing on historical records from the seventeenth and eighteenth centuries, the Article argues that 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 plagues, financial panics, jailbreaks, and natural disasters). This broad reading is supported by constitutional history. In 1789, the first Congress rejected a proposal that would have replaced the phrase “public danger” in the proposed text of the Fifth Amendment with the narrower term “foreign invasion.” The logical inference is that Congress preferred a broad exception to the Fifth Amendment that would subject militiamen to military jurisdiction when they were called out to perform non-military tasks such as quelling riots or restoring order in the wake of a natural disaster — both of which were “public dangers” commonly handled by the militia in the early days of the Republic. Several other tools of interpretation — such as an intratextual analysis of the Constitution and an appeal to uses of the “public danger” concept outside the Fifth Amendment — also counsel in favor of an expansive reading. The Article 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 is itself an important and unexplored insight. Significantly, “public danger” provides a method for thinking about terrorism that is already built into the Constitution. Second, since the Founders recognized the concept of “public danger” but yet declined to extend enhanced authorities 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.
Keywords: public danger, national security, terrorism, grand jury, fifth amendment, legal history, constitutional law
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