Matthew J. Steilen, State University of New York at Buffalo, Law School, is publishing How to Think Constitutionally About Prerogative: A Study of Early American Usage in the Buffalo Law Review. Here is the abstract.
This Article challenges the view of "prerogative" as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke's account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers and legislative debates, this Article argues that early Americans almost never used "prerogative" as Locke defined it. Instead, the early American understanding of "prerogative" appears to have been shaped predominantly by the imperial crisis, the series of escalating disputes with the British ministry over taxation which preceded the Revolutionary War; in this crisis Americans based their claims to enjoy rights of self-taxation on their colonial charters, which were issued by the King's prerogative. The primary connotations of "prerogative" for Americans were thus self-government and the benefits of government, principally the protection of property and liberty. Drawing on this innovative view, the Article then proffers several principles for constructing the powers of the President. It argues that the Article II Vesting Clause should be treated as a substantive grant of executive power, but conceived narrowly as the power to carry out the law, not as a grant of prerogative. It is the enumerated powers in Article II that establish presidential prerogatives. These powers should be treated as "defeasible" in the sense that they may be regulated by statute and judicial decision, within limits the Article describes. This framework is consistent with the series of modern statutes regulating presidential emergency powers, including the War Powers Resolution and the National Emergencies Act.Download the article from SSRN at the link.