Extra-Legal Power and Legitimacy Perspectives on Prerogative

When an economic collapse, natural disaster, epidemic outbreak, terrorist attack, or internal crisis puts a country in dire need, governments must rise to the occasion to protect their citizens, sometimes employing the full scope of their powers. How do political systems that limit government control under normal circumstances allow for the discretionary and potentially unlimited power that such emergencies sometimes seem to require? Constitutional systems aim to regulate government behavior through stable and predictable laws, but when their citizens' freedom, security, and stability are threatened by exigencies, often the government must take extraordinary action regardless of whether it has the legal authority to do so. In Extra-Legal Power and Legitimacy: Perspectives on Prerogative, Clement Fatovic and Benjamin A. Kleinerman examine the costs and benefits associated with different ways that governments have wielded extra-legal powers in times of emergency. They survey distinct models of emergency governments and draw diverse and conflicting approaches by joining influential thinkers into conversation with one another. Chapters by eminent scholars illustrate the earliest frameworks of prerogative, analyze American perspectives on executive discretion and extraordinary power, and explore the implications and importance of deliberating over the limitations and proportionality of prerogative power in contemporary liberal democracy. In doing so, they re-introduce into public debate key questions surrounding executive power in contemporary politics.

Chapter One: Introduction: Extra-Legal Measures and the Problem of Legitimacy (Clement Fatovic and Benjamin Kleinerman); Part I: Early Frameworks; Chapter Two: Prerogative Power in Rome (Nomi Claire Lazar); Chapter Three: Violating Divine Law: Emergency Measures in Jewish Law (Oren Gross); Chapter Four: Lockean Prerogative: Productive Tensions (Leonard C. Feldman); Part Two: American Perspectives; Chapter Five: The Limits of Constitutional Government: Alexander Hamilton on Extraordinary Power and Executive Discretion (George Thomas); Chapter Six: The Jeffersonian Executive: More Energetic, More Responsible, and Less Stable (Jeremy D. Bailey); Chapter Seven: Lincoln and Executive Power During the Civil War: An Examination of One Case. Constitutional Power or, In Effect, An Exercise of Prerogative Power? (Michael Kent Curtis); Part Three: Prerogative in Contemporary Liberal Democracy; Chapter Eight: Filling the Void: Democratic Deliberation and the Legitimization of Extra-Legal Action (Clement Fatovic); Chapter Nine: Emergency Powers and Terrorism-Related Regulation circa 2012: Perspectives on Prerogative Power in the United States (Mark Tushnet); Chapter Ten: The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation (Jack Goldsmith)

Clement Fatovic is Associate Professor of Politics and International Relations at Florida International University. His work focuses on modern and contemporary political and constitutional theory, primarily the development of liberalism constitutionalism in seventeenth- and eighteenth-century political thought up to the American Founding. His writing has appeared in the American Journal of Political Science, Perspectives on Politics, History of Political Thought, and more. He is the author of Outside the Law: Emergency and Executive Power (2009). Benjamin A. Kleinerman is Assistant Professor of Constitutional Democracy in the James Madison College at Michigan State University. His work focuses on constitutional democracy, and he has written on the subject of executive power in the American Constitution. He previously taught at Oberlin College and the Virginia Military Institute, and was Garwood Visiting Fellow in the James Madison Program in American Ideals and Institutions at Princeton University (2011-12). His work has appeared in Perspectives on Politics, American Political Science Review, and Nomos. He is the author of The Discretionary President: The Promise and Peril of Executive Power (2009).