[7] The words are, of course, those of John Locke, Of Civil Government, Bk. II, Ch. XIV.
The studies referred to include: Edward S. Corwin, The President: Office and Powers (New York: New York University Press, 3rd ed., 1948); and Total War and the Constitution (New York: Knopf, 1947); Clarence Berdahl, War Powers of the Executive in the United States, (Urbana: University of Illinois Press, 1921); Clinton L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948) and The Supreme Court and the Commander in Chief (Ithaca: Cornell University Press, 1951); Wilfred E. Binkley, President and Congress (New York: Knopf, 1947); Bennett M. Rich, The President and Civil Disorder (Washington, D. C.: Brookings, 1941); Louis W. Koenig, The Presidency and the Crisis (New York: King’s Crown Press, 1944); John W. Burgess, Ch. XXVIII, vol. 2, The Civil War and the Constitution (New York: Scribners, 1901); James Hart, The Ordinance Making Powers of the President of the United States (Baltimore: Johns Hopkins Press, 1925); James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana: University of Illinois Press, 1951); and a recent article by Albert L. Sturm, “Emergencies and the President,” 11 Journal of Politics, 121, 1949, in which he says, “Lincoln’s precedents have afforded warrant for his aggressive successors to meet extraordinary needs with extraordinary remedies, despite their doubtful constitutionality.” Perhaps as broad a claim to an executive prerogative as has been made in the United States is that which Lucius Wilmerding, Jr., bases upon his study of The Spending Power (New Haven: Yale University Press, 1943): “There are certain circumstances which constitute a law of necessity and self-preservation and which render the salus populi supreme over the written law. The officer who is called to act upon this superior ground does indeed risk himself on the justice of the controlling powers of the Constitution, but his station makes it his duty to incur that risk.” p. 12.
[8] Edward S. Corwin strongly emphasizes that incident in his The President: Office and Powers (New York: New York University Press, 3rd ed., 1948), pp. 303-6.
[9] This is the doctrine which would seem to emerge from Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579 (1952), in which the Court rejected contentions on behalf of President Truman that he enjoyed an “inherent” emergency power to seize private industry in time of emergency occasioned by work stoppages.
[10] This study should not be interpreted as an effort to catalog exhaustively existing delegations of emergency powers to the President. Statutes of the era 1933 to 1955 are analyzed without regard to their present status as expired or in force.
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.