[723] _Op. cit._, p. 131. Rossiter concludes that “As in the past, so in the future, President and Congress will fight our wars with little or no thought about a reckoning with the Supreme Court.... This is a sad moral to proclaim after so long a journey, but it is one that we should have firmly fixed in our constitutional understanding.” THE SUPREME COURT’S APPROACH [724] See _Ex parte Merryman_, Fed. Cas. No. 9487 (1861), 17 Fed. Cas., p. 144. [725] Carl B. Swisher, _Roger B. Taney_, New York: Macmillan, 1936, p. 567. [726] 4 Wall. 2 (1866). [727] _Ex parte_ Milligan, _op. cit._, at pp. 120-21, 126. [728] _Id._, at 139. [729] 327 U. S. 304 (1946). [730] _Id._, at 328. [731] _Constitutional Power and World Affairs_ (New York: Columbia University Press, 1919). [732] 299 U. S. 304 (1936). [733] _Op. cit._, p. 97. [734] _U. S._ v. _Curtiss-Wright_, _op. cit._, pp. 316-318. [735] 323 U. S. 214 (1944). [736] _Id._, at 244. [737] _Id._, at 246. [738] _Id._, at 248. [739] Edward S. Corwin, _Total War and the Constitution_ (New York: Knopf, 1946), p. 80. [740] 249 U. S. 47 (1919). Holmes’ reasoning was perhaps based on J. S. Mill’s analysis in his essay “On Liberty:” “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.” _On Liberty_ (New York: Dutton, 1950), Ch. III, p. 152. [741] Discussed subsequently in relation to the _Dennis_ case. [742] 249 U. S. 47 at p. 52 (1919). [743] _Abrams_ v. _United States_, 250 U. S. 616 (1919). [744] _Id._, at 628-29. [745] _Gitlow_ v. _New York_, 268 U.S. 652 (1925); _Whitney_ v. _California_, 274 U.S. 357 (1927). [746] 18 USC 2385. [747] 183 F. 2d 201, 212-13 (1950). See, Robert G. McCloskey, “Free Speech, Sedition and the Constitution,” 45 APSR, 1951, pp. 662-673. [748] _Dennis_ v. _United States_, 341 U.S. 494 (1951). This incidentally is one of many cases in which restrictive measures which doubtless would have been upheld during a wartime emergency, were sustained as a valid exercise of governmental power during peace time. In _American Communications Association_ v. _Douds_, 339 U. S. 382 (1949), the Court upheld the Communist oath provision of the Taft-Hartley Act, not as justified in an emergency situation such as we then faced, and confront today, but as a normal power of Congress accruing to it under the Commerce Clause. [749] _Home Bldg. & Loan Ass’n_ v. _Blaisdell_, 290 U.S. 398, 426 (1934). This is a reiteration of a quotation from his “War Powers Under the Constitution,” 42 ABA REPORTS, 1917, 238. Also in 8 Doc. 105; 65th Cong., 1st Sess., pp. 7-8. [750] _Hirabayashi_ v. _United States_, 320 U.S. 81, esp. 93 (1942); _Korematsu_ v. _United States_, 323 U.S. 214 (1944). [751] _Bowles_ v. _Willingham_, 321 U.S. 503, esp. 519 (1944).