Georgia Law Review, Vol. 40, No. 3 (Spring 2006), pp. 779-806

Abstract

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and presidential power, one that would give future Presidents the ability to protect legitimate national security interests without allowing them to become, like Bush the Younger, latter-day Caesars. His interlocutors, by contrast, are not interested in discussing restraints on presidential power, constitutional or otherwise; for them, the creation of an imperial presidency is the goal, not the problem, of constitutional theory.