Powers of the President during crisesSmith, J. Malcolm (John Malcolm)
History
Powers of the President during crises
Smith, J. Malcolm (John Malcolm)
Constitutional history -- United States; Executive power -- United States
The suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not
based upon sound constitutional theory, or the experience of Great
Britain or the United States in this century.
To appraise emergency powers--in spite of all experience to the
contrary--in terms of the Procrustean mold of constitutional
dictatorship serves merely to distort the problem and hinder realistic
analysis. It matters not whether the term “dictator” is used in its
normal sense (as applied to recent authoritarian rulers) or is employed
as Friedrich makes explicit[47] and Rossiter implies, to embrace
all chief executives administering emergency powers. However used,
“constitutional dictatorship” cannot be divorced from the implication
of suspension of the processes of constitutionalism. Suspension is
required because constitutionalism is viewed as a system imposing and
providing inflexible safeguards against evasion of these limitations.
A concept of constitutionalism which is less misleading in the analysis
of problems of emergency powers, and which is consistent with the
findings of this study, is that formulated by Charles H. McIlwain.[48]
While it does not by any means necessarily exclude some indeterminate
limitation upon the substantive powers of government, full emphasis
is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism he
insisted that the historical and proper test of constitutionalism
was the existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the enfeebling
of government by an exaggerated emphasis upon separation of powers
and substantive limitations on governmental power. He found that
“the really effective checks on despotism have consisted not in the
weakening of government, but rather in the limiting of it; between
which there is a great and very significant difference.”[49] In
associating constitutionalism with “limited” as distinguished from
“weak” government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force.[50] “The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the
governed.”[51]
Public-domain text, read in full here on John Shaqi.
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