Citation

Casson D. Polit. Policy 2008; 36(6): 944-971.

Copyright

(Copyright © 2008, Policy Studies Organization (USA), Publisher John Wiley and Sons)

DOI

10.1111/j.1747-1346.2008.00146.x

PMID

unavailable

Abstract

Faced with an unsettling expansion of executive emergency power in the United States, scholars have turned to the thought of Carl Schmitt to shed light on constitutional liberalism. Yet the resources for responding to Schmitt can be found in the very tradition that he urges his readers to overcome. Locke recognized what many liberal thinkers since have been hesitant to admit. Fixed laws can help restrain prerogative to a certain extent but cannot transform the irrational and unpredictable nature of political life nor eliminate the discretionary power necessary to respond to it. Consequently, the most important and most effective restraint on executive discretionary power is not legal but political. Both the judgment of the executive and the judgment of the people are essential extralegal elements of the constitutional order.