I would like to thank Hugh Heclo for his helpful comments on an earlier version of this paper.

1. Rossiter, Clinton, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, 1948; New York; 1963), 3.Google Scholar The quotation is from Lincoln's message to Congress of the Fourth of July 1861.

2. Ibid. Arthur S. Miller has made largely this same point in his book Presidential Power: “The problem is how to live with emergency power, for the citizenry are going to have it whatever they may wish and whatever the Constitution implies.” (St. Paul, Minn., 1977).

3. See Watkins, Frederick M., “The Problem of Constitutional Dictatorship,” Public Policy (1940): 324–79Google Scholar; Friedrich, Carl J., Constitutional Reason of State: The Survival of the Constitutional Order (Providence, 1957)Google Scholar and Constitutional Government and Democracy: Theory and Practice in Europe and America (Boston, 1946)Google Scholar, chap. 13: “Constitutional Dictatorship and Emergency Powers”; Rogers, Lindsay, Crisis Government (New York, 1934)Google Scholar, and his many articles on this subject, such as “Presidential Dictatorship in the United States,” Quarterly Review 231 (1919). Like Rogers and others, Rossiter is of course cognizant of the danger that a temporary dictator might be reluctant to return his power when the crisis ended.

4. See Rossiter, , chap. 2: “The Roman Dictatorship,” and see Polybius: The Histories, trans. W. R. Paton, 6 vols. (Cambridge, Mass., 1979).Google Scholar

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6. Locke, John, Second Treatise of Government, ed. Cox, Richard (Arlington Heights, Ill., 1982), chap. 14.Google Scholar

7. The Constitution of the United States, Article I, section 9, clause 2, and Article I, section 10, clause 3.

8. Alexander Hamilton, Federalist 23, in Madison, Hamilton, and Jay, , The Federalist Papers, ed. Rossiter, Clinton (New York, 1961), 153.Google Scholar

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13. See 2 Farrand Records, 318–19. John Rutledge also said that he opposed giving the Executive “the power of war and peace.” See 1 Farrand Records, 70, 65.

14. See Notes of Debates in the Federal Convention of 1787 Reported by James Madison (New York, 1987), 476.Google Scholar [And see Sofaer, Abraham, War, Foreign Affairs, and Constitutional Power: The Origins (Cambridge, Mass., 1976), 31–32.]Google Scholar

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17. Storing, What the AntiFeds Were For, 49, and Complete Anti-Federalist: Symmes (vol.)4.52.

18. Complete Anti-Federalist: Federal Farmer XIV, 2.8.178. See also Storing, What the AntiFeds Were For, 93.

19. Borden, Morton, ed., The Anti-Federalist Papers (Ann Arbor, 1965).Google Scholar See esp. Anti-Federalist #23 (“Certain Powers Necessary for the Common Defense …”) (originally Brutus's seventh and eighth essays in The New York Journal, 3, 10 January 1788), in Borden, 57–62.

20. Anti-Federalist #2 (“We Have Been Told of Phantoms …”) (originally Grayson's Speech of 11 June 1788), in Borden, see 3. See also Anti-Federalist #74 (“The President as Military King”), in Borden at 212–13, and Borden's own Introduction, where he talks about the emergency of Shays' Rebellion, “which almost all Antifederalists deprecated in no less severe terms than the Federalists” (xii).

21. Rossiter, 212.

22. Hamilton, Federalist 23 (Rossiter, ed, 153).

23. Madison, Federalist 41 (Rossiter, ed, 257).

24. Hamilton, Federalist 23 (Rossiter, ed, 156).

25. Ibid., 153. The power to “direct their operations” seems clearly executive.

26. “Washington's Proclamation of Neutrality: April 22, 1793,” in Documents of American History, ed. Commager, Henry Steele, 7th ed. (New York, 1963), 1:162–63, document 96.Google Scholar It should be noted here that the words “neutral” and “neutrality” do not appear in the Proclamation. But the word “impartial” does.

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31. The Writings of James Madison, ed. Gaillard Hunt, 6:138ff.

32. Corwin, Edward S., The President: Office and Powers, 4th rev. ed. (New York, 1957), 368. The other instance noted by Corwin was Woodrow Wilson's personal attendance at the Versailles Peace Conference.Google Scholar

33. “Washington's Proclamation of the Whiskey Rebellion: August 7, 1794,” in Commager, Documents, 1:163–64, document 97.

34. Washington's Whiskey Rebellion response apparently provoked little if any constitutional criticism. In fact, he was generally praised for preserving the Constitution and preventing another Shays' Rebellion.

35. Jefferson said in a subsequent message to Congress: “The moment our peace was threatened, I deemed it indispensable to secure a greater provision of those articles of military stores. … To have awaited a previous and special sanction by law would have lost occasions which might not be retrieved.” (U.S. Congress, Annals of the Congress of the United States: 10th Cong., 1st Sess. (1807–8)(Washington, D.C., 1852).

36. Jefferson's Letter to Doctor James Brown (27 October 1808), in The Writings of Thomas Jefferson, ed. Andrew Lipscomb (Washington, D.C., 1903), 12:182–85.

37. Jefferson's Letter to J. B. Colvin (20 September 1810), in Lipscomb, 12:418–22.

38. Ibid., 422.

39. Locke, Second Treatise, chap. 13, sec. 158.

40. Jefferson, Letter to Colvin, in Lipscomb, 12:418.

41. U.S. Congress, Annals of the Congress of the United States: (1807–8). Most significantly, as some critics of the time pointed out, Jefferson seemed to make no attempt to show statutory or constitutional justification for his Chesapeake crisis actions, relying instead only on the law of necessity.

42. As Charles Warren puts it in his classic study The Supreme Court in United States History [3 vols. (Boston, 1922), 2:222–24]Google Scholar, Jackson appeared to assert that he had the right “to refuse to respect and carry out the decisions of the Court.” Jackson said in the veto message: “The opinion of the Judges has no more authority over Congress than the Congress has over the Judges; and on that point, the President is independent of both …” For a contrary view of Jackson's meaning, see Warren, 222–24.

43. See also Jackson's Protest to the Senate, discussed in this article.

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61. Quoted in Great Presidential Decisions: State Papers that Changed the Course of History, ed. Morris, Richard B. (Greenwich, Conn., 1960–1966), 142.Google Scholar

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68. Lincoln's First Inaugural, in Current, ed., at 117.

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71. Congressional Globe (1862), 440.

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95. Rossiter, 259.

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97. Panama Refining Co. v. Ryan (293 U.S. 388) and Schechter Poultry Co. v. U.S. (295 U.S. 495) (1935).

98. See Corwin, Office and Powers, 275ff.

99. Ibid., 238.

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105. The New York Times, 23–24 February 1944.

106. Wormuth and Firmage, To Chain the Dog of War, 62.

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117. Donovan, The Tumultuous Years, 383–89.

118. Quoted in Brief for Plaintiff in Steel Seizure Case, p. 599 (No. 744–5).

119. Youngstoum Sheet &0 Tube Co. et al. v. Sawyer, 343 U.S. 579 (1952).

120. As Thomas J. Mclnerney has aptly put it, after a “prolonged search for a proper constitutional check on judicial excess and usurpation of powers,” Eisenhower apparently concluded that “the widest policy hinged on a scrupulous maintenance of silence so as not to undermine popular confidence in the government,” counting on time to even things out while taking care to exploit to the fullest the authority conferred on him by his immense national popularity. “Eisenhower's Governance and the Power to Command: A Perspective on Presidential Leadership,” Presidential Studies quarterly 11:2 (Spring 1981): 266.

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130. The Little Rock crisis is discussed extensively in volume 3 of Goldsmith's Growth of Presidential Power.

131. Quoted in Southern School News, October 1957, 2.

132. Goldsmith, 3:1599.

133. Eisenhower, Televised Address to the Nation on the Little Rock Crisis, in Goldsmith, 3:1614.

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140. Aristotle, Politics, Books 3 and 4.

141. Lincoln's First Inaugural Address, in Current, ed., 171.