The American Constitution is far from perfect, but one good feature is that it lacks a provision found in some European constitutions. This provision allows the president to suspend the Constitution if there is a national emergency.
As the theologian David Bentley Hart observes,
“I am not a devout admirer of the United States constitution, but I do find many of its essential principles admirable — chief among them, the refusal to acknowledge the legitimacy of a ‘state of exception.’ Ideally, a president merely presides: he or she supervises the executive function of a parliamentary legal order, but is in no sense elevated above that order. In actual practice, of course, this too has as often as not proved something of a fiction — even Lincoln suspended habeas corpus, and how many undeclared wars and extra-judicial killings have presidents ‘presided over’ without congressional warrant? — but as recently as the early 1970s the principle was still a sufficiently powerful legal and cultural supposition as to force a president from office.”
According to the “state of exception” principle, times of emergency make it impossible to keep in place the guarantees that the Constitution provides for individual liberty. The purpose of the principle is not to bring the Constitution to an end but rather to preserve it by coping with the emergency. After the emergency ends, the president is supposed to restore the Constitution.
The constitution of the German Weimar Republic is a classic example of the principle. According to Article 48, the president is empowered to block the implementation of civil liberties in case of emergency.
“If any state does not fulfill the duties imposed upon it by the Constitution or the laws of the Reich, the Reich President may enforce such duties with the aid of the armed forces. In the event that the public order and security are seriously disturbed or endangered, the Reich President may take the measures necessary for their restoration, intervening, if necessary, with the aid of the armed forces. For this purpose he may temporarily abrogate, wholly or in part, the fundamental principles laid down in Articles 114, 115, 117, 118, 123, 124, and 153.”
In American history, Abraham Lincoln acted as if a similar provision was part of our Constitution, even though it isn’t. He claimed that he could suspend the writ of habeas corpus, even though the Constitution gave this power to Congress, not him, because doing so was necessary to preserve the Constitution in the long run. In a message to Congress on July 4, 1861, he said,
“Soon after the first call for militia it was considered a duty to authorize the Commanding General in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain without resort to the ordinary processes and forms of law such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly.
“Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
Despite his claim that he had used the power to suspend the writ “very sparingly,” Lincoln in fact acted against liberty with great frequency:
“Lincoln claimed extraordinary powers in order to control the chaos of dissent during the Civil War. He suspended the writ of habeas corpus — the provision in the Constitution that protects citizens against arbitrary arrests. By 1863, thousands of civilians had been detained, mostly suspected draft dodgers and deserters and Confederate sympathizers in the Border States and the South.”
It should come as no surprise that neocons and Straussians like what Lincoln did to the Constitution. The neocon historian Allen Guelzo has argued that the Constitution in fact authorizes the president, not Congress, to suspend the writ, and that Lincoln would have been justified in establishing a complete military dictatorship during the War Between the States, continuing though Reconstruction. The leading Straussian Harvey Mansfield also claims in his book “Taming the Prince” that the president, using John Locke’s “prerogative power,” may suspend the writ. The fact that the “prerogative power” isn’t mentioned in the Constitution apparently isn’t relevant.
The “emergency powers” doctrine isn’t new but goes back to the history of the Roman Republic. As Hart notes, the doctrine led to the Republic’s destruction:
“Rome became an empire because the republican order that had succeeded the monarchy of old was supposedly imperiled, and the senate deemed it necessary to appoint an Imperator who would be licensed to rescue the lex Romana by exceeding its prescriptions and restraints with impunity. The fiction that such a man was merely an executive officer of the senate itself, which was supposedly merely an assembly of delegated representatives of the citizens of Rome, was sustained for centuries by such meaningless ceremonial gestures as the Emperor wearing a chaplet of laurels rather than a king’s crown, but of course in reality a tyranny had been established and the republic effectively abolished at the moment an Augustus entered the city accompanied by the Praetorian Guard.”
We should steer clear of this doctrine; it is exceedingly dangerous. You might, though, raise an objection: No matter how dangerous it is, doesn’t there need to be a procedure to cope with emergencies? The objection is not to the point. Even if there is a need for such a procedure, which I very much doubt, why does it have to be in the hands of one person?
