James Madison and the Emergency Powers of the Legislature

Journal Article: James Madison and the Emergency Powers of the Legislature

Journal: Constitutional Studies. Constitutional Studies publishes work from a variety of disciplines addressing the theory and practice of constitutional government around the world. The journal engages scholars from diverse geographic and topical research areas to expand our understanding of constitutional democracy, formal and informal constitutional systems, constitutional jurisprudence, and related subjects in comparative constitutional studies. Constitutional Studies is published twice annually by the Comparative Constitutions Project and the International Association of Constitutional Law. More about the journal can be found here.

Date of Publication: January 1, 2016

Author: Clement Fatovic. Fatovic is a Professor of Politics and International Relations at Florida International University’s Steven J. Green School of International & Public Affairs. More on Fatovic can be found here.

How to Cite: Fatovic, Clement. 2016. “James Madison and the Emergency Powers of the Legislature”. Constitutional Studies 1 (1): 67-94. https://doi.org/10.15781/xkjvtq74.

Abstract: Prerogative, the power to take extra-legal measures in extraordinary circumstances, is generally considered to be the exclusive domain of the executive. This article shows that James Madison, who is widely regarded as hostile to discretionary power in the executive, not only endorsed exercises of prerogative by the executive but also took steps toward developing a model of prerogative that gives primacy to the legislature in times of emergency. Madison’s views on “legislative prerogative” emerged in the context of congressional debates over avowedly unconstitutional proposals including a grant of military authority to seize private property during the revolutionary war, the creation of the Bank of North America under the Articles of Confederation, and the provision of financial assistance to refugees from St. Domingo. These cases reveal a strict constructionist resorting to extra-legal measures to pursue objectives not expressly authorized by the constitution then in place as a safer alternative to more permanent expansions of government power established through law.

The article is found here, and the PDF of the article can be found here.

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