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Outside the Law: Emergency and Executive Power (The Johns Hopkins Series in Constitutional Thought)

Outside the Law: Emergency and Executive Power (The Johns Hopkins Series in Constitutional Thought)


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The origins of presidential claims to extraconstitutional powers through nationwide crises are contentious factors of debate amongst constitutional and legal scholars. The Constitution is silent on the issue, but from Abraham Lincoln's suspension of habeas corpus through the Civil War to George W. Bush's development of the "enemy combatants" label, a range of presidents have invoked emergency executive electricity in protection of actions not specifically endorsed in the Constitution or granted by Congress.

Taking up the debate, Clement Fatovic digs into the intellectual history of the nation's founding to argue that the originators of liberal constitutional theory explicitly endorsed the use of extraordinary, extralegal measures to deal with real nationwide emergencies. He traces the evolution of considered on the issue by means of the writings of John Locke, David Hume, William Blackstone, and the founding fathers, obtaining in them stated support for what Locke termed "prerogative," tempered by a meticulously construed principle of public-oriented virtues. Fatovic maintains that the founders thought that ethical character and republican decency would restrain the president from abusing this grant of enhanced authority and ensure that it remained momentary.

This engaging, meticulously considered survey of the conceptions of executive electricity in constitutional considered explains how liberalism's founders attempted to reconcile the ideas of constitutional authorities with the fact that some circumstances would desire that an executive take normally proscribed actions. Scholars of liberalism, the American founding, and the American presidency will locate Fatovic's reasoned arguments against the traditional wisdom enlightening.

(2010)

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