Faculty Publications


Thomas E. Baker

Document Type


Publication Date



Tribute to Judge Procter Hug of the United States Court of Appeals for the 9th Circuit, based on a talk adapted from Thomas E. Baker's At War With the Constitution: A History Lesson from the Chief Justice, 14 BYU J. Pub.L. 69 (1999).

It is but a truism that the powers of the government are greatest when the Nation is at war. All of our wartime Commanders-in-Chief have conducted themselves based on this belief. For its part, the Supreme Court has acquiesced in draconian measures undertaken by the Executive that would not be permitted during peacetime. The lasting problem is that, when the crisis is over and things get back to normal, we tend to hold onto the crisis constitution instead of returning to the normal constitution. With each such crisis, our basic civil rights and civil liberties shrink.