The Constitution and Executive Power in Wartime

Giorgi Areshidze

Winter 2011

Description: Does the Constitution authorize the President to take

extraordinary measures to protect the nation in emergencies that would
be prohibited under normal circumstances? If so, how do we evaluate the
legitimacy of extralegal actions and hold presidents accountable? Should
Presidents justify themselves during crisis as seeking authority beyond
the Constitution, or does the Constitution itself remain flexible in its
meaning and therefore apply differently in times of peace and war? Major
themes include separation of powers, the role of congressional and
judicial oversight of the presidency, and constitutional construction.
Readings include the theory of liberal absolutism in Thomas Hobbes
Leviathan, the foundations of prerogative power and constitutionalism in
the writings of John Locke, the US Constitution and the Federalist Papers,
case studies of major Supreme Court decisions, and selections of
emergency powers provisions from constitutions throughout the world.

Reading List:

Bessette, Joseph M. and Jeffrey Tulis. 2009. The Constitutional

Presidency (I will assign the introductory chapters and two chapters on
separation of powers and war powers from this collection).
Thomas Hobbes, Leviathan, (selections from sections on absolute
sovereign authority).
John Locke, Second Treatise on Government (selections from sections
on prerogative and right to revolution).
The Founders Constitution
Hamilton, Madison, and Jay, The Federalist Papers (selected essays on
separation of powers and presidency)
Selections from The Collected Works of Abraham Lincoln (1953) 9 vols.
Ed. Roy P. Basler. New Brunswick, NJ: Rutgers University Press
Lincoln: Selected Speeches and Writings, Library of America
Benjamin Kleinerman, Lincolns Example: Executive Power and the
Survival of Constitutionalism, Perspective on Politics, Vol. 3, No. 4 (Dec.
2005).
Clement Fatovic, Constitutionalism and Presidential Prerogative:
Jeffersonian and Hamiltonian Perspectives, American Journal of Political
Science, Vol. 48, Issue 3 (Jun 2004)
Korematsu v. U. S, 323 U.S. 214, 243 (1944)
 Executive Order: Directing the Secretary of Commerce to Take
Possession of and Operate the Plants and Facilities of Certain Steel
Companies
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)
Hamdi v. Rumsfeld 542 U.S. 507 (2004)
Rumsfeld v Padilla 542 U.S. 426 (2004)
Hamdan v Rumsfeld 126 S.Ct 2749 (2006)
Boumediene v Bush 128 S. Ct. 2229 (2008)
Selected Emergency Powers Provisions from World Constitutions
o Weimar (German) Constitution of 1919: Article 48
o Constitution of (modern) Germany: Article 81 (State of legislative
emergency)
o Constitution of Canada
o Selections from the Constitution of Turkey: Suspension of the
Exercise of Fundamental Rights and Freedoms, Procedures
Governing Emergency Rule
o Constitution of France: Article 16
o Constitution of India: Proclamations of Emergency

Grading Policy

Attendance and Quizzes: 20%; Class Participation: 20%; Two 2-3 Papers:
30%; 5-7 Page Final Paper 30%