h a
constitutional doctrine which forbids the elected representatives of the
people to make this choice? Can we hold that the First Amendment
deprives Congress of what it deemed necessary for the Government's
protection? To make validity of legislation depend on judicial reading
of events still in the womb of time--a forecast, that is, of the outcome
of forces at best appreciated only with knowledge of the topmost secrets
of nations--is to charge the judiciary with duties beyond its equipment.
We do not expect courts to pronounce historic verdicts on bygone events.
Even historians have conflicting views to this day on the origin and
conduct of the French Revolution. It is as absurd to be confident that
we can measure the present clash of forces and their outcome as to ask
us to read history still enveloped in clouds of controversy. * * * The
distinction which the Founders drew between the Court's duty to pass on
the power of Congress and its complementary duty not to enter directly
the domain of policy is fundamental. But in its actual operation it is
rather subtle, certainly to the common understanding. Our duty to
abstain from confounding policy with constitutionality demands
preceptive humility as well as self-restraint in not declaring
unconstitutional what in a judge's private judgment is unwise and even
dangerous."[225]

Justice Jackson's opinion emphasizes the conspiratorial element of the
case, and is flatfooted in rejecting the 'clear and present danger' test
for this type of case. He writes: "The 'clear and present danger' test
was an innovation by Mr. Justice Holmes in the _Schenck Case_,
reiterated and refined by him and Mr. Justice Brandeis in later cases,
all arising before the era of World War II revealed the subtlety and
efficacy of modernized revolutionary techniques used by totalitarian
parties. In those cases, they were faced with convictions under
so-called criminal syndicalism statutes aimed at anarchists but which,
loosely construed, had been applied to punish socialism, pacifism, and
left-wing ideologies, the charges often resting on far-fetched
inferences which, if true, would establish only technical or trivial
violations. They proposed 'clear and present danger' as a test for the
sufficiency of evidence in particular cases. I would save it,
unmodified, for application as a 'rule of reason' in the kind of case
for which it was devised. When the issue is criminality of a hot-headed
speech on a s