Is a Rule of Law Without Exceptions a Suicide Pact? Historical Perspectives on an Overriding Executive Power to Protect the Salus Populi

Abstract

The Article posits that every constitutional order within the Western legal tradition that influenced the Framers recognized the necessity of control over executive emergency powers. It responds to the work of scholars such as Michael Stokes Paulsen, John Yoo, Eric Posner, and Adrian Vermuele, who have used historical arguments to justify strong claims about unbridled presidentialism in national security matters. The Article demonstrates that it has always been recognized that one of the fundamental purposes of a constitution (written or unwritten) is to provide a framework for the exercise of executive power. It details how, throughout history, legal opinion has been surprisingly consistent in rejecting the argument that emergencies can provide a basis for the chief executive (whether an emperor, king, or president) to ignore the laws in defense of public safety. It also illustrates how the writings of theorists as varied in time and opinion as Cicero and John Locke have been used to support the argument for an inherent executive power to protect the salus populi, but that these appropriations are based upon critical misunderstandings of these theorists' work and its political context.