Abstract
Monarchical conceptions of power in seventeenth-century England, anchored in the theory of High Prerogative, were characterized by sweeping claims to illimitable authority in matters of foreign and domestic affairs. Stuart kings, principally James I and Charles I, also adduced the Divine Right of Kingship as justification for, among other things, unilateral authority to commence war, to formulate and conduct the nation’s foreign affairs, to withhold information from Parliament involving national security concerns, as well as the power to detain subjects and deny them the benefit of a judicial hearing. English kings also contended that the courts could not review their judgments and decisions in matters of state.
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Notes
Alexander Tocqueville, Democracy in America (New York: Harper Row, 1966), Book I, Chap. 8.
Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973).
See David Gray Adler, The Constitution and the Termination of Treaties (New York: Garland, 1986).
See Fisher, Presidential War Power, 202–35; David Gray Adler, “Termination of the ABM Treaty and the Political Question Doctrine: Judicial Succor or Presidential Power,” Presidential Studies Quarterly 34 (2004): 156–67.
See David Gray Adler, “The Constitution and Presidential Warmaking: The Enduring Debate,” Political Science Quarterly 103 (1988): 1–36.
See David Gray Adler, “The Condition of the Presidency: Clinton in Context,” in Adler and Michael Genovese, eds., The Presidency and the Law: The Clinton Legacy (Lawrence, KS: University Press of Kansas, 2002), 184–6.
Max Farrand, The Records of the Federal Convention of 1787, 4 vols. (New Haven: Yale University Press, 1911), I:66.
See Adler, “The Framers and Treaty Termination: A Matter of Symmetry,” 1981 Arizona State Law Journal, 891–923; Adler, “Termination of the ABM Treaty,” 156–67; Adler, “The President’s Recognition Power,” in Adler and George, Constitution and Foreign Policy, 133–58.
Elliot, Debates, 2:507. In the First Congress, Roger Sherman, who had been a delegate in Philadelphia, argued in defense of the shared powers arrangement in foreign affairs: “the more wisdom there is employed, the greater security there is that the public business will be done.” Annals of Congress (1789), 1:1085.
Henry Steele Commager, Documents Of American History, 7th ed. (New York: Meredith Publishing Company, 1963), 133. Charles Warren observed that this power, as well as others, came “bodily from the old Articles of Confederation.” Charles Warren, The Making Of The Constitution (Boston: Little, Brown and Company, 1937), 389.
2 Jonathan Elliot, Debates in the Several State Conventions on the Adoption Of the Federal Constitution, 2nd ed. (1836), 528. Robert McCloskey wrote that Wilson was the “most learned and profound legal scholar of his generation.” 1 Works Of James Wilson 2, R.G. McCloskey ed. (Cambridge: Harvard University Press, 1967).
Francis D. Wormuth, “The Nixon Theory of the War Power: A Critique,” California Law Review 60 (1972): 623, 630.
Francis Newton Thorpe, The Federal And State Constitutions, Colonial Charters And Other Organic Laws (1909), 3243, 3249.
Louis Henkin, Foreign Affairs and the Constitution (Mineola, NY: Foundation Press, 1972), 50–1.
Gaillard Hunt, ed., The Writings of James Madison (New York: G.P. Putnam’s Sons, 1906), 152.
Quoted in Alexander DeConde, Presidential Machismo (Boston: Northeastern University Press, 2000), 18.
“Letter of Helvidius,” in Madison, Writings, 6:148. In 1798, Madison wrote to Jefferson, “The Constitution supposes, what the History of all Govts. Demonstrates, that the Ex. is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legisl,” 312. Thus, he rejected doctrines that “will deposit the peace of the Country in that Department which the Constitution distrusts as most ready without cause to renounce it,” 312.
Quoted in Louis Fisher, Congressional Abdication on War and Spending (College Station, TX: Texas A&M University Press, 2000), 119.
See Jinks and Sloss, “Is the President Bound by the Geneva Conventions?” Cornell Law Review 90 (2004): 97.
See Adler, “The Framers and Treaty Termination: A Matter of Symmetry,” Arizona State Law Journal (1981): 891–923.
Joseph Story, Commentaries on the Constitution of the United States, 5th ed. (Boston: Little, Brown, and Company, 1891), 2:342.
Madison to Edmund Pendleton, January 2, 1791, 1 Writings of James Madison, 523–4.
Justice Robert H. Jackson dismissed Sutherland’s musing as “dictum.” Youngstown Co. v. Sawyer, 343 U.S. 579, 636 N. 2 (1952).
Edward S. Corwin, The President: Office and Powers, 3rd ed. (New York: New York University Press, 1948), 216.
Quoted in Berger, “The President’s Unilateral Termination of the Taiwan Treaty,” Northwestern University Law Review 75 (1980): 591.
The Court has repudiated the theory several times. See, for example, Reid v. Covert, 324 U.S. 1 (1957). For discussion, see Adler, “Constitution and Warmaking,” 29–35; Lofgren, “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” Yale Law Journal 83 (1973):1–28; Fisher, Presidential War Power, 69–73.
John Yoo and Robert Delahunty: Memorandra for William J. Haynes II, General Counsel, Department of Defense, January 9, 2002; Jay S. Bybee, assistant attorney general, “Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense,” January 22, 2002; Alberto R. Gonzales, “Memorandum for the President: Decision RE: Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda ad the Taliban,” January 25, 2002.
Dated February 7, 2002, the president’s memo is titled, “Humane Treatment of Al Qaeda and Taliban Detainees.”
Francis D. Wormuth and Edwin B. Firmage, To Chain the Dog of War (1986), 165.
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© 2006 Michael A. Genovese and Lori Cox Han
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Adler, D.G. (2006). The President as King: The Usurpation of War and Foreign Affairs Powers in the Modern Age. In: Genovese, M.A., Han, L.C. (eds) The Presidency and the Challenge of Democracy. The Evolving American Presidency Series. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230600744_8
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