Academic journal article Presidential Studies Quarterly

As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government

Academic journal article Presidential Studies Quarterly

As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government

Article excerpt

In The Education (1918), Henry Adams, perhaps our most astute observer of American history, confessed that had his life hung in the balance regarding his first judgment of President Lincoln, he would have lost it. Happily for Adams, historical judgments are post hoc, giving him time to reflect, and correct, his initially misguided judgment. Maybe it was Adams's overwrought sense of irony that led him to believe that the new president was even more in need of an education than the young grandson and great-grandson to past presidents. Adams can be forgiven, for few, if any, judged Lincoln correctly at that moment. In fact, it seems apt that Lincoln's presidency was judged great largely in retrospect. Lincoln seized extraordinary power, justified by the seriousness of events as well as on the outcome of its use. Lincoln's use of presidential prerogative, the greatest in our history, reveals that our judgments of such a use of power are, of necessity, after the fact.

The very nature of prerogative suggests that judgment is not possible in the midst of action. Prerogative is, after all, exercised in extraordinary circumstances when the executive must act on his discretion to ensure the public good. The whole point is that we cannot stand idly by, waiting for public consensus or congressional action. So the president acts for the public good--as Lincoln did during the Civil War in suspending the writ of habeas corpus, seizing the initiative while Congress was adjourned, and other efforts of dubious legality. Now, we are still left with the riddle of whether presidential prerogative is constitutional. Indeed, this could be pushed even further by asking whether executive power is compatible with Republican government.

Presidential prerogative as presented by John Locke (1988) in chapter 14 of the Second Treatise points to the deep ambivalence of executive power. There are those, such as Arthur Schlesinger Jr., who argue that presidential prerogative is necessary but strictly extraconstitutional.(1) Presidents, on occasion, must act to preserve the nation, even if it means putting the law aside, as Locke (1988) says in that justly famous passage:

   `tis fit that the Laws themselves should in some Cases give way to the
   Executive Power, or rather to this fundamental Law of Nature and
   Government, viz. That as much as may be, all the Members of the Society are
   to be preserved. (P. 375)

For Schlesinger (1973), prerogative is a departure from the law and should be recognized as such. The redoubtable Henry Monaghan of Columbia Law School echoes this. In his famous July 4 speech before Congress in special session, Lincoln put the matter of presidential prerogative squarely before us: "To state the question more directly, are all the laws, but one, to go unexecuted, and the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?" (Lincoln 1992, 307). To which Professor Monaghan (1993) gives a resounding, "yes." This is what the law requires, Monaghan tells us. This is unfortunate and, in its way, rather misses the point. Legalists, let us call them, like Schlesinger and Monaghan, adhere to the letter of law while forgetting its ends: there are times when adherence to the rule of law may undermine the rule of law. The trouble is that many scholars want to define prerogative in nice and neat legal terms. But this is exactly what cannot be done. Prerogative cannot be neatly defined, a priori, in legal terms because it attempts to reconcile law and necessity and, as such, depends on the peculiar circumstances of its use. It is not always clear beforehand whether a particular use of prerogative is or is not "legal."(2)

The thesis of this article is that prerogative is constitutional in the broadest sense--prerogative, that is, is exercised within the confines of the American regime as a constitutional regime. This means not only the parchment barriers James Madison refers to in Federalist 41 but the active dynamic that a particular use of prerogative may be rejected by the courts, the Congress, and the people as beyond the constitutional limits of the American regime. …

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