“A Court of Impeachments is among the most puzzling articles of a republican
Constitution, and it is far more easy to point out defects in any plan, than to supply a cure
for them.”
--James Madison, on Thomas Jefferson’s Proposed Constitution for Virginia
Alongside the present public discussion George W. Bush’s use of executive
power, there is ongoing debate about whether the Constitution grants a prerogative power
to the president. That is, though most people agree that the president must, because of the
imperfection of the law, occasionally act in the silence of the law, and perhaps even
violate it, on behalf of the public good, they differ as to whether the Constitution affords
such authority on the president. There are two basic schools of thought on this question.
One group of scholars argues that the vesting clauses of Articles I and II, as well as the
president’s constitutional oath, reveal a constitutional authority to break the laws in order
to preserve the Constitution. Another group argues that the Constitution is silent on
prerogative and thus leaves prerogative to political rather than constitutional resolution.
At the heart of this debate is the question whether constitutions should
acknowledge their incompleteness. According to the constitutional understanding, it is
dangerous to depart from the Constitution because such departures initiate precedents for
future departures and thus condition the people and their rulers for unlawfulness.
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Research for this paper was made possible by a summer stipend from the National Endowment for the
Humanities. A version of this paper was presented at the 2006 meeting Midwest Political Science
Association. For a discussion of the scholarly understandings of prerogative and the Constitution, see
Jeremy D. Bailey, “Executive Prerogative and the ‘good officer’ in Jefferson’s letter to John B. Colvin,”
Presidential Studies Quarterly 34 (2004):732-54; Clement Fatovic, “Constitutionalism and Presidential
Prerogative: Jefferson and Hamiltonian Perspectives,” American Journal of Political Science 48 (2004):
429-44; Mark Tushnet, “Emergencies and the Idea of Constitutionalism,” in The Constitution in Wartime:
Beyond Alarmism and Complacency, ed. Mark Tushnet, 39-54 (Durham: Duke University Press, 2005); and
Benjamin A. Kleinerman, “Lincoln’s Example: Executive Power and the Survival of Constitutionalism,”
Perspectives on Politics 3: 4 (2005): 801-16.
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Convention