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
A third factor influencing the casual reliance of democratic theorists
on emergency dictatorship is the tendency to polarize the concept of
“limited” government and the supposed need for “unlimited” emergency
action. This is related to the tendency to exaggerate substantively
limited (enumerated) powers, and compartmentalized powers as integral
elements in the concept of constitutionalism.[12] In positing rigidly
circumscribed and divided governmental powers, one posits a need
contingent upon emergency to transcend such limitations. The doctrine
of constitutional dictatorship fulfills this need.
DEMOCRATIC POLITICAL THEORISTS
John Locke, describing the architecture of civil government, called
upon the English doctrine of prerogative to cope with the problem of
emergency. In times of danger to the nation, positive law set down
by the legislature might be inadequate or even a fatal obstacle to
the promptness of action necessary to avert catastrophe. In these
situations the Crown retained a prerogative “power to act according to
discretion for the public good, without the prescription of the law and
sometimes even against it.”[13] The prerogative “can be nothing but the
people’s permitting their rulers to do several things of their own free
choice where the law is silent, and sometimes too against the direct
letter of the law, for the public good and their acquiescing in it when
so done.”[14]
Properly the prerogative was exercisable only for the public good.
But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. When one government has utilized
prerogative powers for the public good, a successor may retain the
habit or resort to such powers, utilizing them for a less worthy
purpose.[15] Who shall judge the need for resorting to the prerogative,
and how may its abuse be avoided? Here Locke, too, readily admits
defeat, suggesting that “the people have no other remedy in this, as
in all other cases where they have no judge on earth, but to appeal to
Heaven.”[16]
Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency:
“The inflexibility of the laws, which prevents them from adapting
themselves to circumstances, may, in certain cases, render them
disastrous, and make them bring about, at a time of crisis, the ruin of
the State....
“It is wrong therefore to wish to make political institutions so strong
as to render it impossible to suspend their operation. Even Sparta
allowed its laws to lapse.
Public-domain text, read in full here on John Shaqi.
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