Abstract
In the work Discourses on Livy, Niccolò Machiavelli (1469–1527) warned against extra legal models of emergency governance as potentially devastating for a government (Hartz 2010, p. 81). He argued instead that a republic should always make sure to develop a system of checks and balances that it could resort to in emergencies:
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The influence of Machiavelli’s analysis of the Roman institution of dictatorship can also be traced to classical philosophical discussions of emergency powers by, for example, Rousseau (Du contrat social); Schmitt (Die Diktatur); and Rossiter (Constitutional Dictatorship).
- 2.
In ancient Rome the institution of dictatorship was a constitutional mechanism for lending special authorities to a single person—a dictator—for a limited period of time aimed at addressing a particular threat to national security. The appointment of the dictator was controlled by a complex system of checks and balances in order to ensure that he was not able to abuse his special authorities beyond the task of dealing with the emergency at hand. For further details, see Ferejohn and Pasquino (2004).
- 3.
While there is no indication that the framers were influenced by Machiavelli’s discussion of the need for formal procedures governing decision-making process in emergencies, there is amble evidence that the Constitution’s division of the war powers signifies a conscious strategy to curb the president’s powers during emergencies as a means to secure liberal values (Fisher 2004, p. 1 and 8).
- 4.
317 U.S. 1 (1942).
- 5.
343 U.S. 579 (1952).
- 6.
542 U.S. 507 (2004) I discuss this case in Chap. 6.
- 7.
548 U.S. 557 (2006) I discuss this case in Chap. 7.
- 8.
The procedure of the commission was later criticized for being strictly controlled by Roosevelt. Luis Fisher’s account of the procedure of the commission constitutes a typical example of this critique:
Roosevelt appointed the tribunal, selected the judges, prosecutors, and defence counsel, and served as the final reviewing authority. The generals on the tribunal, the colonels serving as defence counsel, and the two prosecutors […] were all subordinate to the President. “Crimes” related to the law of war came not from the legislative branch, enacted by statute, but from executive interpretations of “the law of war” (Fisher 2004, p. 206).
- 9.
Art. 15 of the Articles of War was later incorporated into the Uniform Code of Military Justice as Art. 21 see 10 USCA § 801 et seq.
- 10.
US Const. amend. V and VI.
- 11.
548 U.S. 557 I discuss this case in Chap. 7.
- 12.
The Court also narrowed the scope of the decision by emphasizing that the saboteurs had violated the laws of war.
Citing Military Law and Precedents by William Winthrop, Justice Stone argued:
The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals (Quirin at 12).
- 13.
I discuss this case further in Chap. 7.
- 14.
343 U.S. 579 (1952).
- 15.
This observation may be read as an indirect rebuff of the practical significance of the Court’s celebrated defense of the rule of law in Ex Parte Milligan [71 U.S. (4 Wall.) 2 (1866)].
- 16.
A second UN resolution, passed later on the same evening, did call for “urgent military measures […] to repel the armed attack” (Schlesinger 2004, p. 131).
- 17.
Both The Federal Mediation and Conciliation Service and The Wage Stabilization Board were established under the authority of the Defense Production Act of 1950 (64 Stat. 798) which was part of a massive federal wage and price stabilization effort designed to support defence production during the war.
- 18.
The order stated that
a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.
Therefore, the order went on:
in order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided (Executive Order 10340).
- 19.
61 Stat. 136, Pub.L. 80–101.
- 20.
In Oxford Advanced Learner’s Dictionary of Current English (1987 edition) the word “imponderable” is explained to mean that “which cannot be weighed or measured”, or that “of which the effect cannot be estimated”.
- 21.
The 2006 case Hamdan v. Rumsfeld is a good illustration both of the influence of Jackson’s model and of the elasticity of its interpretation. Hamdan concerned the legality of a military commission convened by the Bush administration to try suspected terrorist detainees in Guantánamo Bay. Jackson’s model was invoked in Hamdan to underpin the conclusions of both the concurring opinion written by Justice Kennedy and one of the dissenting opinions written by Justice Thomas.
References
Bryant AC, Tobias C (2003) Quirin revisited. Wis Law Rev 2003(1):309–364
Ferejohn J, Pasquino P (2004) Law of exception: a typology of emergency powers. Int J Const Law 2(3):210–239
Fisher L (2004) Presidential war power, 2nd Aufl. University Press of Kansas, Lawrence
Gross O, Ní Aoláin F (2006) Law in times of crisis: emergency powers in theory and practice. Cambridge studies in international and comparative law (Cambridge, England: 1996). Cambridge University Press, Cambridge
Hartz E (2010) From Milligan to Boumediene: three models of emergency jurisprudence in the American Supreme Court. Balt J Law Polit 3(2):69–97
Issacharoff S, Pildes RH (2004) Emergency contexts without emergency powers: the United States constitutional approach to rights during wartime. Int J Const Law 2(3):296–333
Katyal NK, Tribe LH (2002) Waging war, deciding guilt: trying the military tribunals. Yale Law J 111(6):1259–1310
Machiavelli, N. (1984). Discourses. London, Penguin Books
Machiavelli, N. (2005). The Prince. Cambridge, Cambridge University Press
Paulsen MS (2002) Youngstown goes to war. Const Comment 19(1):215
Pildes RH, Issacharoff S (2004) Between civil libertarianism and executive unilateralism: an institutional process approach to rights during wartime. Theor Inquiries Law 5(1):1–2
Pushaw RJ (2007) The “Enemy Combatant” cases in historical context: the inevitability of pragmatic judicial review. Notre Dame Law Rev 82(3):1005–1084
Rossiter C, Longaker RP (1976) The Supreme Court and the Commander in Chief, Expanded Aufl. Cornell University Press, Ithaca
Schlesinger AM (2004) The imperial presidency, 1st Mariner Books Aufl. Houghton Mifflin, Boston
List of Cases
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Milligan, Ex parte, 71 U.S. 2 (1866)
Korematsu v. U.S., 323 U.S. 214 (1944)
Prize Cases, The Amy Warwick, 67 U.S. 635 (1862)
Quirin, Ex parte, 317 U.S. 1 (1942)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2013 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Hartz, E. (2013). Procedural Model. In: From the American Civil War to the War on Terror. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32633-2_4
Download citation
DOI: https://doi.org/10.1007/978-3-642-32633-2_4
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-32632-5
Online ISBN: 978-3-642-32633-2
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)