Conference on Perspectives on Prerogative
The LeFrak Forum and the Symposium on Science, Reason, & Modern Democracy, Department of Political Science, Michigan State University, present a conference titled “Perspectives on Prerogative” on March 24-26, 2011.
The terrorist attacks of 9/11 are sometimes said to have “changed everything.” Some of the most significant and enduring changes in American politics have involved expansion of executive powers in the prosecution of the “war on terror.” Many observers expected the most controversial exercises of executive power to end with the Bush administration, but the administration of President Obama has actually continued and even expanded many of these policies. So the issue of the place of executive power in modern constitutional government is again a matter of party controversy and scholarly debate.
A considerable body of scholarship since 9/11 has examined various dimensions of emergency government and executive power in the context of the war on terror. Some of that scholarship has raised questions about the extent and limits of executive exercise of emergency power in response to other sorts of emergency events: natural disasters such as Hurricane Katrina, epidemic outbreaks, economic crises like the recent financial crisis, and so on.
Our aim in this conference is to examine an especially troubling form of executive power: “prerogative” or “extra-legal” or “extra-constitutional” power. That is, we seek to investigate a form of executive power that, in a constitutional government, would not and should not be countenanced by the ordinary laws, because it enables the executive to act, in Locke’s phrase, “according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” How far can “necessity” justify the exercise of such power? What constitutional and other limits on such a power can prevent its abuse?
9/11 has forced these questions to the forefront of national debate, but political thinkers have wrestled with the constitutional implications of prerogative powers for a long time. Participants in this conference will examine the rich array of solutions proposed or inspired by past considerations of the problem of extraordinary executive power. Our hope is that this inquiry will contribute to a better understanding of the trade-offs involved in different approaches to the exercise of extraordinary power and thereby shed light on our current political situation.
March 24 – 26, 2011
Michigan State University
Thursday, March 24
Keynote Address, 6:00 pm, Kellogg Center Auditorium
Jack Goldsmith, Harvard Law School
“Checks and Balances in the War on Terrorism”
Reception, 8:00 pm – 10:30 pm, Cowles House
Friday, March 25
MSU Union, Gold Room
Session 1
9:00 am – 10:45 am
Papers:
Nomi Claire Lazar, University of Ottawa, School of Public and International Affairs
“Why the Plebs Didn’t Bark in the Night: Some Further Thoughts on the Roman Dictatorship”
Oren Gross, University of Minnesota Law School
“Is There Authority to Violate Divine Law? Emergency Legislation in Jewish Law”
Discussants:
Hugh Liebert, University of Richmond, Jepson School of Leadership Studies
Benjamin Pollock, Michigan State University, Religious Studies
Session 2
11:00 am – 12:45 pm
Paper:
Mark Tushnet, Harvard Law School
“Emergency Powers around the World circa 2010”
Discussant:
Mariah Zeisberg, University of Michigan, Political Science
Session 3
2:45 pm – 4:30 pm
Papers:
Jeremy D. Bailey, University of Houston, Political Science
“Jefferson’s Executive: More Unitary, More Responsible, and Less Stable”
George Thomas, Claremont McKenna College, Government
“Alexander Hamilton on Executive Discretion”
Discussant:
Julian Davis Mortenson, University of Michigan Law School
Jeffrey Tulis, University of Texas, Government
Saturday, March 26
Kellogg Center, 104 A&B
Session 4
9:00 am – 10:45 am
Papers:
Michael Kent Curtis, Wake Forest School of Law
“Lincoln, a ‘War President’: Prerogative and Selected Problems”
Leonard Feldman, Hunter College, CUNY, Political Science
“Lockean Prerogative as Legal and Cultural Precedent”
Discussants:
Martin Lederman, Georgetown University Law Center
Benjamin Kleinerman, Michigan State University, James Madison College
Session 5
11:00 am – 12:45 pm
Papers:
Clement Fatovic, Florida International University, Politics and International Relations
“Filling the Void: Democratic Deliberation and the Legitimization of Extra-Legal Powers”
William Scheuerman, Indiana University, Political Science
“From Bavaria to Berlin: A Political Genealogy of Carl Schmitt’s Theory of Emergency Powers”
Discussant:
Folke Lindahl, Michigan State University, James Madison College
Svetozar Minkov, Roosevelt University, Philosophy
Session 6
2:45 pm – 4:30 pm
Review and discussion