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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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
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With the advancements that have been witnessed in the political and social organization in the modern society, it is virtually possible to live with any system of government just as it is to do away with it. This implies that the relevance of the doctrine of parliamentary privilege on modern society can be assessed from different angles; affirmative or otherwise.
For instance, the decision to wage war against another country is an important decision, which the Parliament cannot debate.1 At times of national emergency, the Prime Minister or the executive invokes the Royal Prerogative to engage in warfare. However, the use of the Royal Prerogative is incompatible with modern day democracies.
The traditional meaning of judicial review was illustrated in two instances. First is in Federalist No. 78 and second is in the case of Marbury Vs. Madison (5 U.S. 137). “Laws which are contrary to the Constitution are therefore void because the interpretation of the laws is the proper and peculiar province of the courts (Federalist No.
The powers of these two have been over the years been intertwined and one has been largely subsumed by the other, that is, the monarchy and the parliamentary powers. These royal prerogatives include powers that solely lied in the hands of the crown, but the powers have over time been reduced, leaving the office of the prime minister, and other ministers to have a say in the matters.
The British constitution (comprising of a set of guiding principles and laws) is derived from a large number of sources that include: Royal prerogative powers Conventions Statute EU Treaties Common law Authoritative statements made in print, as in law books. Royal prerogative laws existed prior to the current form of the UK parliament.
In the German ideology, Hegel argues that humans are alienated from the Absolute (supernatural being or God) and that the historical process represents the process of moving towards God. Where humans and the Absolute are reunited or in state of reality, that marks the end of history.
Once the Osmosis of the above scenario clears in the reader's mind it is possible to discern a pattern where as the Queen of Hearts (later rhetorically referred to as "nothing-but a pack of Cards" by Alice) is equivalent to the Modern Executive with its unfettered discretion to use and abuse its powers, lock up and detain people at its own will, apply legislation in an oppressive manner and the list goes on.
formed; prohibition, which orders that an action should not be undertaken as it is unauthorized; a declaration, which defines the legal rights or obligations or an injunction. In short, judicial review is that power of a court, which empowers it to scrutinize a law or an
Moreover, the principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority2. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were
On the other hand, Viscount Radcliffe holds that the powers under royal prerogative are neither discretionary nor arbitrary as some want to
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