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There is no place in a modern constitution for prerogative powers. They have received no democratic seal of approval, Their amenability to judicial review is - Essay Example

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Can the President use "unconstitutional" authority in order to save the Constitution and constitutional democracy The answer should be understandable, but scholars and jurists have made the issue (and answer) more complex than it should be. Our saga about constitutional government refers to Ex parte Milligan, (1) Duncan v…
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There is no place in a modern constitution for prerogative powers. They have received no democratic seal of approval, Their amenability to judicial review is
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There is no place in a modern constitution for prerogative powers. They have received no democratic seal of approval, Their amenability to judicial review is

In other words, the Constitution does not operate usually in abnormal times, and both the existence of a "wartime" constitution and the potential for "constitutional dictatorship" follow from that relevant fact. In spite of sporadic rhetoric, in contrast to statutes and decisions, very little has really changed in two centuries from the way presidents have invariably acted during a dire emergency. In answering Lincoln's question, raised in 1861, constitutional democracy can be very strong to keep up its own existence without undermining the liberties of the people it has been formed to protect. But the nation's political leadership must be so liable and at the same time be willing to stick to constitutional constraints.
Saying that, let me now spell out the content and issues that follow for discussion: 1) the president must possess emergency powers capable of operating in abnormal times; 2) prerogative powers innately belong to the president in his capacity as political head of the nation and definitive guardian of the Constitution; 3) the Bush administration is making many of the same mistakes in its war on terror as the Johnson and Nixon administrations made with regard to the earlier Vietnam misadventure; 4) Congress, while salvaging its capacity to work out real legislative supervision over the presidential use of war powers in 1973-76, finds itself reluctant or unable to say no to the President since September 11, 2001; 5) legislation enacted since the terrorist attack in New York and anywhere else has engorged not only the President's ability to take the nation into war but has revolutionized the whole concept of separation of powers/checks and balances; and 6) emergency/prerogative power must be used in a terrible emergency only, and when the initial emergency situation comes to an end so should the unregulated use of outstanding presidential power.
In Federalist No. 23, Alexander Hamilton, writing about the idea of crisis government and the need for indeterminate power in the national government, announced that the war powers "should exist without restraint, because it is impossible to anticipate or define the degree and variety of national emergencies, and the correspondent extent and variety of the means which may be indispensable to please them." (4) The period of civil war permanently transformed our understanding of the war powers. Lincoln's imaginative combining of the commander-in-chief, take care, and executive power clauses into a notion of presidential war power independent of legislative authority--where ends justified means--laid to rest the earlier, limited meaning of commander-in-chief. Lincoln's assertion of this independent, virtually unlimited war power, held together by Locke's "prerogative" theory, (5) was legitimized and sanctioned by the Supreme Court within two years. (6) This transformation set the stage for the modern presidential office, applied the notion of constitutional dictatorship in the United States, and began the development of the "wartime" constitution.
Earlier in the development of the Republic, generally that period from Abraham Lincoln to Franklin Roosevelt, presidents would act illegally and then depend upon Congress to ratify their actions after the ... Read More
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