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
In the United States we have been especially prone to accept the
alleged need for transition from responsible to authoritarian
government in time of emergency, for we have on the one hand accepted
an interpretation of the Constitution whereunder the rigid restraints
imposed thereby on governmental power are susceptible of contradiction
in time of emergency, and on the other hand we have with considerable
complacence assigned to the Supreme Court the function of protecting
the essentials of constitutionalism and democracy through periods of
emergency. These two attitudes combine to enhance the sense of need
and lull the fear of supposedly temporary reversions to authoritarian
government.
In the belief that it is increasingly essential that emergency action
be sustained by a workable and empirically-based theory of democratic
emergency governance, the authors have undertaken, in the present
study, to survey the treatment of emergency by democratic political
theorists; to review the work of the Supreme Court in assessing the
validity of governmental exercises of emergency powers (placing special
emphasis upon the implications of the 1952 “Steel Seizure” cases); and,
in conclusion, to submit tentatively an approach to emergency which
they consider related to the needs of today and the realities of recent
experience.
Democratic political theorists traditionally have assumed the need in
time of emergency to subvert the governmental processes prescribed
for peacetime and to rely upon a generically different method of
government, frequently designated “constitutional dictatorship.” Many
factors contribute to this tendency.
First, it must be recognized that a theory of democratic government so
comprehensive as to traverse every vicissitude which might confront it
cannot reasonably be demanded of political philosophers.
Second, a certain amount of inertia is inevitable in any phase of man’s
endeavors. Thus it is not surprising that political theorists to date
have picked up the traditional interpretation of emergency in terms of
the Roman dictatorship and fitted it to their schemes of constitutional
government. It is a safely ambiguous doctrine with the respectability
of age. It invests an aspect of the experience of constitutional
democracies, about which very little in the way of cumulative knowledge
has been attained, with an aura of reassuring and doctrinaire certainty.
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