CHAPTER II

Suspension of the writ, and declaration of martial law were, of course, as simulated in the raid itself. The story of the exercise may be traced in the New York Times, June 16, 1955, pp. 1, 16; June 17, 1955, pp. 1, 10, 11. The full text of the proclamation is available in Senate Committee on Armed Forces, Subcommittee on Civil Defense, Hearings on the Civil Defense Program, Part II, p. 746 (1955). Cf. Professor Charles Fairman’s remarks in “Government under Law in Time of Crisis,” a paper presented at the Marshall Bicentennial Conference, Harvard Law School, September 1955: “Indeed it is rather a matter for shame that we take so little thought for the morrow. More than mere individual self-preservation is at stake. If we believe that the Western Civilization we know is worth maintaining, if we are devoted to the conceptions of law and justice as they have been defined in the course of our history, then surely we should be moved to make them secure.”

Id. It is this idea that emergency may require executive action contrary to the law, i.e., a suspension of law which is most dangerous to constitutional morality. It presents the executive with false alternatives: “Was it possible to lose the nation and yet preserve the Constitution?... I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the nation.” Abraham Lincoln, letter to A. C. Hodges, April 4, 1864, Henry J. Raymond, The Life and Public Service of Abraham Lincoln (New York: Derby & Miller, 1865), p. 767.

DEMOCRATIC POLITICAL THEORISTS

Bk. II, Ch. XIV.

Id.

Locke, op. cit., Bk. II, Ch. XIV.

Id.

The Social Contract (New York: Dutton, 1950), pp. 123-24.

Id., at 125. Cf. Frederick M. Watkins’ findings regarding the use of Article 48 of the Weimar Constitution. The Failure of Constitutional Emergency Powers Under the German Republic. (Cambridge: Harvard University Press, 1939.)

Id., at 124-125.

Representative Government (New York: Dutton, 1950), pp. 274, 277-78.

Edmund Silberner, The Problem of War in the Nineteenth Century Economic Thought (Princeton: Princeton University Press, 1946), p. 66ff.

Id., at 46.

Id., at 62.

MACHIAVELLI

The Discourses, Bk. 1, Ch. XXXIV.

In contrast to Mill, Machiavelli’s use of the term “dictator” is loose and misleading. The so-called dictator was really a temporary emergency executive who by no means enjoyed absolute power.

The Discourses, Bk. 1, Ch. XXXIV.

Id., at Ch. XXXV.

CONTEMPORARY THEORISTS

The Failure of Constitutional Emergency Powers Under the German Republic, op. cit., p. 148.

See his “The Problem of Constitutional Dictatorship,” p. 324ff. in Carl J. Friedrich and Edward S. Mason (editors) Public Policy (Cambridge: Harvard University Press, 1940).

Id., at p. 328.

Id., at 353.

Id., at 351.

Id., at 356-58.

Id., at 338-41.

Id., at 338.

Constitutional Government and Democracy, Ch. XXVI, rev. ed. (Boston: Ginn & Co., 1949).

Id., at 573.

Id., at 580.

Id., 574-584.

Id., at 584.

Clinton L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948), p. 288ff.

Here, citing Friedrich, he observes “there might well have been no crisis in 1933 if President Roosevelt had been required to appoint another to wield the abnormal display of power which he seemed to find so necessary at the moment.” Id., at 303. But since he later specifically advocates retention of what he describes as “the inherent emergency power of the President” (p. 308), why hobble it by discouraging a presidential finding of the existence of an emergency? Cf. Grier, J., in Prize Cases, 2 Black 635, 669-71 (1862), holding that war (emergency) may commence when the Chief Executive takes up a proferred challenge.

Rossiter, op. cit., pp. 298-306.

Id., at 310-11.

Id., at 309.

The Supreme Court and the Commander in Chief (Ithaca: Cornell University Press, 1951), p. 1, see p. 19 infra.

CONTEMPORARY THEORIES IN THE LIGHT OF RECENT EXPERIENCE.

Op. cit., p. 573.

Constitutionalism Ancient and Modern (Ithaca: Cornell University Press, 1940), p. 180.

Id., at 246.

Id., at 1.

Id., at 146.

Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 at 634-55 (1952), in which he discusses the relative power of the President acting under his executive powers alone, and acting under a marriage of executive and congressional powers, is opposite here.

Note William Y. Elliott’s theory of the co-organic society, in The Pragmatic Revolt in Politics, (New York: Macmillan, 1928), pp. 355-77.

See Cecil T. Carr, Delegated Legislation (Cambridge: University Press, 1921) p. 72, and Concerning English Administrative Law (New York: Columbia University Press, 1941), p. 189; Lord Hewart of Bury, The New Despotism (New York: Cosmopolitan Book Corporation, 1929), p. 308; W. A. Robson, Justice and Administrative Law (London: Stevens, 1945), p. 385, and Marguerite A. Sieghart, Government by Decree (London: Stevens, 1950), p. 343.