Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

Authors


  • An earlier version of this article was presented at the 2003 Annual Meeting of the Midwest Political Science Association in Chicago, IL, where I received insightful criticisms from John C. Koritansky, William B. Allen, and fellow panelists. I am grateful for the institutional support and encouragement I received from the Department of Political Science at the University of Florida, especially from Michael Martinez and Amie Kreppel. Ken I. Kersch, Nancy Hirschmann, Isaac Kramnick, Theodore J. Lowi, Jeremy Rabkin, and the anonymous reviewers from this journal deserve special thanks for their valuable comments and suggestions on earlier versions of this article.

Clement Fatovic is Visiting Assistant Professor, Vassar College, Box 258, 124 Raymond Avenue, Poughkeepsie, New York 12604 (clfatovic@vassar.edu).

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.

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