Chapter II

[11] 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.”

[12] _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

[13] Bk. II, Ch. XIV.

[14] _Id._

[15] Locke, _op. cit._, Bk. II, Ch. XIV.

[16] _Id._

[17] _The Social Contract_ (New York: Dutton, 1950), pp. 123-24.

[18] _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.)

[19] _Id._, at 124-125.

[20] _Representative Government_ (New York: Dutton, 1950), pp. 274, 277-78.

[21] Edmund Silberner, _The Problem of War in the Nineteenth Century Economic Thought_ (Princeton: Princeton University Press, 1946), p. 66ff.

[22] _Id._, at 46.

[23] _Id._, at 62.

MACHIAVELLI

[24] _The Discourses_, Bk. 1, Ch. XXXIV.

[25] 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.

[26] _The Discourses_, Bk. 1, Ch. XXXIV.

[27] _Id._, at Ch. XXXV.

CONTEMPORARY THEORISTS

[28] _The Failure of Constitutional Emergency Powers Under the German Republic_, _op. cit._, p. 148.

[29] 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).

[30] _Id._, at p. 328.

[31] _Id._, at 353.

[32] _Id._, at 351.

[33] _Id._, at 356-58.

[34] _Id._, at 338-41.

[35] _Id._, at 338.

[36] _Constitutional Government and Democracy_, Ch. XXVI, rev. ed. (Boston: Ginn & Co., 1949).

[37] _Id._, at 573.

[38] _Id._, at 580.

[39] _Id._, 574-584.

[40] _Id._, at 584.

[41] Clinton L. Rossiter, _Constitutional Dictatorship_ (Princeton: Princeton University Press, 1948), p. 288ff.

[42] 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.

[43] Rossiter, _op. cit._, pp. 298-306.

[44] _Id._, at 310-11.

[45] _Id._, at 309.

[46] _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.

[47] _Op. cit._, p. 573.

[48] _Constitutionalism Ancient and Modern_ (Ithaca: Cornell University Press, 1940), p. 180.

[49] _Id._, at 246.

[50] _Id._, at 1.

[51] _Id._, at 146.

[52] 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.

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

[54] 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.