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Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives Scholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post‐hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Political Science Wiley

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

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Publisher
Wiley
Copyright
Copyright © 2004 Wiley Subscription Services, Inc., A Wiley Company
ISSN
0092-5853
eISSN
1540-5907
DOI
10.1111/j.0092-5853.2004.00079.x
Publisher site
See Article on Publisher Site

Abstract

Scholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post‐hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative.

Journal

American Journal of Political Science – Wiley

Published: Jul 1, 2004

References

  • The God‐Like Prince': John Locke(,) Executive Prerogative, and the American Presidency
    Arnhart, Arnhart
  • The Supreme Court and National Policy Making
    Casper, Casper
  • Decision‐Making in a Democracy: The Supreme Court as a National Policy‐Maker
    Dahl, Dahl
  • Rethinking the Civil Rights and Civil Liberties Revolutions
    Klarman, Klarman
  • John Locke & the Limits of Presidential Prerogative
    Langston, Langston; Lind, Lind
  • Emergency Powers and Emergency Regimes: A Commentary
    Lijphart, Lijphart
  • A Science of Politics: Hume, The Federalist , and the Politics of Constitutional Attachment
    Manzer, Manzer
  • Locke on King's Prerogative
    Pasquino, Pasquino
  • Liberty, Nobility, Philanthropy, and Power in Alexander Hamilton's Conception of Human Nature
    Rosano, Rosano
  • The President and the Law
    Wilmerding, Wilmerding