Public-domain ebook
by Smith, J. Malcolm (John Malcolm); Cotter, Cornelius P.
Language: en5,873 downloads on Project Gutenberg
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In: History - American·Law & Criminology·Politics
Public-domain ebook sourced from Project Gutenberg #74067.
The work is a scholarly study of the United States president’s emergency authority, tracing statutory delegations and actual uses from 1933 through the mid‑1950s. It opens with a vivid analogy likening emergency power to morphine, capable of relieving a nation’s crisis when administered correctly, yet dangerous if misapplied. The authors then outline their method: a “graphic picture” of how emergency powers have been invoked across military, economic, and disaster contexts, emphasizing constitutional foundations, statutory limits, and the role of judicial review. The preface reveals the book’s origins in research at Stanford, Harvard, and Washington, D.C., and notes its reliance on earlier studies of British emergency powers and classic constitutional scholarship, positioning the volume as the first exhaustive account of American practice in this field.
Written in the measured, academic prose of the early Cold‑War era, the text reflects the authors’ backgrounds in political science and government service. It blends legal analysis with historical narrative, citing Supreme Court opinions, congressional actions, and specific presidential episodes such as Eisenhower’s 1955 suspension of habeas corpus. Readers who appreciate detailed constitutional history, legal scholars examining executive authority, or students of mid‑twentieth‑century American politics will find the book’s thorough documentation and balanced perspective especially rewarding.
The opening · free to read
The use of emergency power in a democracy raises many questions relative to the constitutional basis for its authorization and the manner of its exercise. If used too little and too late a democratic state might be destroyed when the proper use of the emergency power possibly could have saved it. If used arbitrarily and capriciously, its use could degenerate into the worst form of dictatorship.
As a boy I was the chauffeur for a country doctor. One day while driving to see a patient who was gravely ill, the doctor opened his medicine chest and pointed to a glass vial containing morphine. “That drug,” he said, “is the most potent medicine in my chest but requires great skill in prescribing. Used properly it relieves pain and suffering. Used improperly it makes animals of men.” Emergency power bears to government the same general relationship of morphine to man. Used properly in a democratic state it never supplants the constitution and the statutes but is restorative in nature. Used improperly it becomes the very essence of tyranny.
By reference to particular statutes and specific instances this volume affords a graphic picture of the broad extent to which emergency power has been employed by the United States government in recent years. Many will view this development with alarm for the many instances of its use make a lengthy list. Military emergency today is but one type of national emergency. Catastrophes and economic emergencies may also require the exercise of this type of power. Indeed, its use in this day and time has been so frequent that the very term “emergency” is being “shorn of meaning.”
In the present volume the authors describe and comment upon the use of emergency power in the United States since 1933. It is their contention that the use of emergency power was contemplated and provided for in the Constitution. The law also provides restraints upon its use. As Professor McIlwain has concluded, the proper test of constitutionalism is the existence of adequate processes for keeping government responsible. It is comforting to know that these processes exist within our government. The primary requirement of all Americans, then, is to keep government responsible and within these limitations, for only when this is done can emergency power be justified under the law of the land.
The always present danger is that emergency power may be used by an officer or an agency of the government in order to have its own way when constitutional or other legal restrictions might irritate or interfere. This danger can be lessened by the selection of good governmental personnel, but removed to a greater degree by the enforcement of these constitutional and statutory limitations which are made effective at times by resort to judicial review.
Readers will be indebted to the authors for this first exhaustive account of the actual use of emergency power by the United States government since 1933. The restraint on the freedom of the individual, the regulation of private enterprise, the control of communications are but some of the topics that receive minute and careful treatment. Some readers will be concerned with the frequency of the resort to emergency power and will view with uneasiness, as does this writer, the possible curtailment of individual rights. Yet the authors would be the first to agree with the statement that, “Freedom and civil liberties, far from being incompatible with security, are vital to our national strength.” Security and rights are here made interdependent. Others will take satisfaction in the flexibility of the United States government that can maintain its democratic character and still have the means of preserving its existence under the tremendous pressure of a world war and periods of economic crises. Irrespective of attitude, the present volume is a telling account of the manner in which the government of the United States has been made adaptable under the Constitution to the problems and exigencies of the modern world.
ROBERT S. RANKIN Washington, D. C.
A preface is a kind of last call to dinner, as it were, in which the authors suggest the purpose of their undertaking, chart the course they have chosen to pursue, and acknowledge the help they have received.
This study of the President’s use of emergency powers grew out of research and discussions in Washington, D. C., and at Harvard, the University of California, and other institutions. In one sense, it is a sequel to Dr. Cotter’s study of emergency powers in Great Britain, prepared under Harvard’s Sheldon Travelling Fellowship during the academic year 1951-52.
In preparing a political science course at the University of California’s Riverside campus, one of the most significant gaps in available sources and treatises about the Presidency concerned the vast range of power, generally called emergency powers, available to the Chief Executive should he choose to follow the prescription used by many predecessors, notably F.D.R.
Both authors have, of course, profited from the monumental work of Professor Edward S. Corwin, whose classic study, The President: Office and Powers remains the outstanding work in the field. Professor Robert S. Rankin’s study, When the Civil Law Fails, contained valuable historical data of particular importance. Both authors have also had the inestimable privilege and opportunity of studying under Professor Charles Fairman, now at Harvard Law School. Professor Fairman’s study, The Law of Martial Rule, was very helpful in providing the historical setting for government under military control. The authors were fortunate in having read Professor Fairman’s paper delivered at the National War College, “A Post-Atomic Attack Situation,” wherein it is clearly brought forth that a complete plan and pattern for dealing with a nuclear attack must be worked out that does envisage the restoration of civil government to the nation as quickly as circumstances permit, should the cold war ever turn into an all-out nuclear holocaust.
While the original work on the manuscript was completed before either of the authors came to Washington, both have benefitted from the experience of working in the Pentagon, the Commission on Civil Rights, the Republican National Committee and the U. S. Senate. One is apt to view the executive branch of government from a slightly different perspective, once having been associated with “the Hill.” And, while the Congress may feel powerless to act against a determined Chief Executive, the power of the purse still provides the most effective of all the “checks and balances” in our national government, except in time of war.
The Fund for the Republic provided the authors with a grant-in-aid in 1955 to begin work on the book, although the Fund had no contact or association with the authors during the preparation of the manuscript.
Parts of some chapters have previously appeared as article in the Western Political Quarterly and The Journal of Politics, and the authors wish to acknowledge their appreciation at being able to reproduce all or parts of these articles.
Mr. Warren Campbell served as a helpful research assistant while a graduate student at Stanford and rendered invaluable aid. Dr. Norman Small of the American Law Division of the Library of Congress performed an essential editorial task in reading the entire manuscript and suggesting very useful changes.
The authors are both grateful to Mrs. Connie Smith, a patient wife, who spent long, dreary hours typing and re-typing the manuscript. And, last, but by no means least, the authors reserve a special vote of the very deepest appreciation to the Executive Director of Public Affairs Press, Mr. M. B. Schnapper whose patience, confidence and continued good humor made publication possible.
J. MALCOLM SMITH AND CORNELIUS P. COTTER Washington, D. C.
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