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
[11] Suspension of the writ, and declaration of martial law were, of
course, as simulated in the raid itself. The story of the exercise may
be traced in the _New York Times_, June 16, 1955, pp. 1, 16; June 17,
1955, pp. 1, 10, 11. The full text of the proclamation is available
in Senate Committee on Armed Forces, Subcommittee on Civil Defense,
_Hearings on the Civil Defense Program_, Part II, p. 746 (1955). Cf.
Professor Charles Fairman’s remarks in “Government under Law in Time of
Crisis,” a paper presented at the Marshall Bicentennial Conference,
Harvard Law School, September 1955: “Indeed it is rather a matter
for shame that we take so little thought for the morrow. More than
mere individual self-preservation is at stake. If we believe that the
Western Civilization we know is worth maintaining, if we are devoted
to the conceptions of law and justice as they have been defined in the
course of our history, then surely we should be moved to make them
secure.”
[12] _Id._ It is this idea that emergency may require executive
action contrary to the law, _i.e._, a suspension of law which is
most dangerous to constitutional morality. It presents the executive
with false alternatives: “Was it possible to lose the nation and
yet preserve the Constitution?... I felt that measures otherwise
unconstitutional might become lawful by becoming indispensable to the
preservation of the nation.” Abraham Lincoln, letter to A. C. Hodges,
April 4, 1864, Henry J. Raymond, _The Life and Public Service of
Abraham Lincoln_ (New York: Derby & Miller, 1865), p. 767.
DEMOCRATIC POLITICAL THEORISTS
[13] Bk. II, Ch. XIV.
[14] _Id._
[15] Locke, _op. cit._, Bk. II, Ch. XIV.
[16] _Id._
[17] _The Social Contract_ (New York: Dutton, 1950), pp. 123-24.
[18] _Id._, at 125. Cf. Frederick M. Watkins’ findings regarding
the use of Article 48 of the Weimar Constitution. _The Failure of
Constitutional Emergency Powers Under the German Republic._ (Cambridge:
Harvard University Press, 1939.)
[19] _Id._, at 124-125.
[20] _Representative Government_ (New York: Dutton, 1950), pp. 274,
277-78.
[21] Edmund Silberner, _The Problem of War in the Nineteenth Century
Economic Thought_ (Princeton: Princeton University Press, 1946), p.
66ff.
[22] _Id._, at 46.
[23] _Id._, at 62.
MACHIAVELLI
[24] _The Discourses_, Bk. 1, Ch. XXXIV.
[25] In contrast to Mill, Machiavelli’s use of the term “dictator” is
loose and misleading. The so-called dictator was really a temporary
emergency executive who by no means enjoyed absolute power.
[26] _The Discourses_, Bk. 1, Ch. XXXIV.
[27] _Id._, at Ch. XXXV.
CONTEMPORARY THEORISTS
[28] _The Failure of Constitutional Emergency Powers Under the German
Republic_, _op. cit._, p. 148.
[29] See his “The Problem of Constitutional Dictatorship,” p. 324ff.
in Carl J. Friedrich and Edward S. Mason (editors) _Public Policy_
(Cambridge: Harvard University Press, 1940).
[30] _Id._, at p. 328.
[31] _Id._, at 353.
[32] _Id._, at 351.
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