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THE CONSTITUTION OF LAW Part 3

Lincoln, ông cho biết, đăng ký với một lý thuyết rằng trong một thời gian khẩn cấp, Tổng thống có thể giả định bất cứ điều gì lập pháp, quyền hành pháp và tư pháp ông nghĩ rằng cần thiết để bảo vệ đất nước, và trong quá trình này có thể phá vỡ định luật cơ bản của dân tộc,nếu như một bước không thể tránh khỏi ". | carl schmitt s challenge 37 greatest of constitutional dictators was self-appointed but Mr. Lincoln had no alternative .58 Rossiter had in mind Lincoln s actions during the Civil War including the proclamation by which Lincoln without the prior authority of Congress suspended habeas corpus.59 Lincoln he said subscribed to a theory that in a time of emergency the President could assume whatever legislative executive and judicial powers he thought necessary to preserve the nation and could in the process break the fundamental laws of the nation if such a step were unavoidable .60 This power included one ratified by the Supreme Court an almost unrestrained power to act towards insurrectionary citizens as if they were enemies of the United States and thus place them outside the protection of the Constitution .61 Rossiter s difficulties here illustrate rather than solve the tensions in the idea of constitutional dictatorship. On the one hand he wants to assert that emergency rule in a liberal democracy can be constitutional in nature. Constitutional implies restraints and limits in accordance not only with law but also with fundamental laws. These laws are not the constitution which is in place for ordinary times rather they are the laws that govern the management of exceptional times - his eleven criteria. The criteria are either put within the discretion of the dictator - they are judgments about necessity - or are couched as limits that should be enshrined either in the constitution or in legislation. However Rossiter does not properly address the alleged fact that judgments about necessity are for the dictator to make which means that these criteria are not limits or constraints but merely factors about which the dictator will have to decide. Other criteria look more like genuine limits. Moreover they are limits that could be constitutionally enshrined for example the second criterion requires that the person who makes the decision that there is an emergency should