Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

Abstract

CollegeScholars, 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.

Unilateral Powers, Public Opinion, and the Presidency

“…other adjoining branches. 9 The rule of law is especially relevant for characterizing views toward unilateral powers, as scholarship on American political thought has often viewed executive prerogative "as a disturbing anomaly in a normally rule-bound system of government" (Fatovic 2004). Support for the rule of law comes into conflict with support for executive power, as individuals with strong commitments to the rule of law are likely to perceive a president's use of unilateral authority as inconsistent with the president's role in a democratic system.…”

Constitutional Blemishes: American Alcohol Prohibition and Repeal as Policy Punctuation

“…First, this study begins to link the policy dynamics literature with the crisis-governance literature. Scholars have long understood that even in advanced democracies, periods of crisis and war can dramatically change the dynamics of decision making in matters of foreign and domestic policy alike (Fatovic, 2004;Mayhew, 2005;Rossiter, 1948)-this study suggests a number of ways that external crises can generate positive-feedback mechanisms and create radical policies. Increased public attention can raise the salience of the issue by shifting the focus away from those issue dimensions that provide the foundation for the stability of the existing policy toward economic and security dimensions that tend to dominate public concern (Jones & Baumgartner, 2005).…”

The Law: A Constitutionalist's Defense of Prerogative: Taft's Our Chief Magistrate and His Powers

“…The Hamiltonians, in contrast, argue that prerogative, while strictly extralegal, remains constitutional. Thus, they contend that prerogative is a “supplement to law” (Arnhart , 124, also 122, 125), which may require the executive to act outside of the law, yet which is justified so long as he acts only in the service of “the fundamental principles of our regime” (Thomas , 548, also 534–36, 541–42; Fatovic , 430–31). While the Hamiltonians argue that the Constitution grants the president prerogative power, they do not explain how it limits that power.…”

“…As a result, the Hamiltonians ultimately come close to agreeing with the Jeffersonians. As Clement Fatovic points out, “The major difference between Jefferson and Hamilton is not over the desirability or the necessity of extralegal executive action, but over its constitutionality ” (Fatovic , 429–30). While the Jeffersonians argue that prerogative power is illegal and unconstitutional, the Hamiltonians seek to legitimize prerogative by claiming that it can be both extralegal and constitutional.…”