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Michael Stoff, Director 305 East 23rd St, CLA 2.102, (G3600) Austin, TX 78712-1250 • 512-471-1442

Spring 2008

T C 357 • Emergency Power and the Constitution

Unique Days Time Location Instructor
43700 T
3:30 PM-6:30 PM
CRD 007A
Tulis & Levinson

Course Description

Does the Constitution authorize or permit the President to take extraordinary measures to protect the nation in emergencies that would be prohibited under normal circumstances? Does the Constitution prohibit some forms of power that might be effective in meeting national emergencies? Is torture ever justified? Should presidents go beyond the Constitution, if necessary, to protect the nation from foreign threats? The problem of emergency power has been a subject of concern for thinkers and statesmen since the origin of liberal democracy and modern constitutional government. This issue has taken on new urgency now as the United States prosecutes a war on terror.

In this seminar we will study classic accounts of this problem in the literature of political philosophy, especially classic accounts of Machiavelli and Locke, in the writing of the German thinker Carl Schmitt, and in writings of recent democratic theorists. We will examine these theoretical alternatives in light of three major historical episodes: Lincoln and the Civil War, FDR and World War II, and current efforts in the wake of the attack on the World Trade Center in September 2001. We will also discuss landmark Court cases that bear on this theme including: Ex Parte Milligan; Korematsu v. U.S.; Youngstown Sheet & Tube Co. v. Sawyer; and Hamden v. U.S. Some attention will also be paid to the place of emergency power in constitutions other than our own.

The theme of this course is a vexing and controversial issue. Sandy Levinson and I bring different perspectives and conflicting ideas to this issue, which offers the pedagogic advantage of denying students one authoritative voice and thus forces them to think for themselves. We have considerable respect for each other and have successfully worked together as co-instructors team teaching a graduate seminar last spring. We have also worked together for many years as co-editors of a book series on constitutional thought for John Hopkins University Press. We would stress that our model of team teaching requires full preparation by both of us for each and every class session (rather than dividing up the topics or the meetings of the course.) The course is appropriate for the Plan II program because it blends materials from three disciplines: political theory, American history, and law.

Texts

Locke, "Of Prerogative"
Carl Schmitt, Political Theology
Clinton Rossiter, Constitutional Dictatorship
Daniel Farber, Lincoln's Constitution
William Stevenson, A Man Called Intrepid
Sanford Levinson ed, Torture (selections)
Joseph M. Bessette and Jeffrey K. Tulis, The Constitutional Presidency (selections)
Packet of articles and cases

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