Justice Clarence Thomas “Remarks on the 250th Anniversary of the Declaration of Independence”

“…The second paragraph of the Declaration proclaims: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights….” Throughout my youth, these truths were articles of faith that were impervious to bigotry or discrimination. The American Heritage Dictionary of the English Language defines “self-evident” as “obviously true, and requiring no proof, argument or explanation.” Whether they had a divine source, or a worldly one, they were never questioned. They were the Holy Grail, the North Star, the rock – immovable and unquestioned….
All too often, there is an unfortunate tendency, when discussing the Declaration, to make these self-evident truths and first principles of government obscure. Intellectuals want you to believe that our founding principles are matters of esoteric philosophy or sophisticated debate. Even those who support them too often talk about them as if they were academic playthings. They overcomplicate them, take the spirit out of them, and discuss them in a manner that puts us to sleep…

I still believe now, as I did then, that the Declaration of 1776 provides us with the principles to guide us as citizens of our great Republic. Even in this time of questioning and criticism of our founding, we should not forget that the Declaration established the principles that produced – despite all of our imperfections, miscues, and tragic mistakes – the freest, wealthiest, and most powerful nation in the history of the world. It provided the moral principles by which Frederick Douglass, Abraham Lincoln, and Martin Luther King, Jr. could criticize the institutions of slavery and segregation. The Declaration is, in fact, along with the Gospels, one of the greatest antislavery documents in the history of Western civilization. It did not establish a form of government – that was the job of the Constitution that followed – but it stated the purpose of government. The Declaration made clear in clear prose that the purpose of government is to protect our God-given inalienable rights, rights that all individuals equally possess. As Abraham Lincoln declared in 1858, in the midst of his great debate with Stephen Douglas, “drop every paltry insignificant thought for any man’s success. It is nothing; I am nothing; Judge Douglas is nothing. But do not destroy that immortal emblem of Humanity – the Declaration of American Independence.”

The ideas of the Declaration were so powerful that our nation could not coexist with the contradiction created by the great evil of slavery. Those principles were so powerful that hundreds of thousands of Americans fought and died in the Civil War to make men free. Those ideas have been so powerful that they convinced our nation to finally end segregation. They continue to be so powerful today that they have inspired people throughout the world to throw off the shackles of their oppressors.

And, it all began with our Founders declaring in 1776 in the Declaration of Independence that: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.” We should also not forget the important sentence that follows: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” The principle of consent follows from the principle of equality. We the people can never legitimately consent to the violation of our God-given equality.

However, when I encounter the Declaration of Independence anew today, I am most struck by the final sentence. It can be easy to forget, 250 years later, the courage it took for those 56 men to sign the Declaration. Arguably, these men committed treason against the King, risking death at the hands of an empire far mightier than the newborn United States. They thus concluded with the memorable final sentence: “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” I will say that again: “we mutually pledge to each other our lives, our fortunes, and our sacred honor.”

 
…Nothing in the Declaration of Independence, I now realize, matters without that final sentence. Without that sentence, the rest of the Declaration is but mere words on parchment paper. Nice words, but, nonetheless, just words. What changed the world was not the words, but the commitment and spirit of the people who were willing to labor, sacrifice, and even give their lives—what Lincoln at Gettysburg called “the last full measure of devotion”—for the Declaration’s principles.

 
It is that devotion to which we owe our rich inheritance. It was that devotion that sustained the Founding Fathers and the Continental Army as they fought and won the Revolutionary War, braved the winter at Valley Forge, crossed the Delaware, and defeated an army many times their number and firepower to win their freedom. It was that devotion that Nathan Hale expressed when, before being executed by the British, he reportedly stated: “I only regret that I have but one life to give for this country.” It was that devotion that Patrick Henry invoked when he stood before the Virginia Convention and asked, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, almighty God. I know not what course others may take, but as for me, give me liberty or give me death.”

 
…At this point, I asked myself a simple question: what are your principles worth to you? The answer I gave then is the same I would give today. It is worth life itself?

What are those principles? They are the same principles in the Declaration. They were bequeathed to me by my grandparents and reinforced by my nuns and my faith. In God’s eyes we are equal. We are all equally created in the image and likeness of God. We are all endowed with natural rights to life, liberty, and property. Our rights and our dignity are inherent. They do not come from others and that they do not come from the Government. And, our Government derives its legitimacy and authority from our consent; we do not get ours from it.

The primacy of our rights in relation to our government is crucial in reconciling the immortal words of the Declaration with our Constitution and our history. None of our rights come from the government; all of the government’s authority comes from our consent. And, the structure and limited role of government is to assure that it does not exceed the authority to which we have consented or intrude on our natural rights. The Constitution is the means of government; it is the Declaration that announces the ends of government. The Constitution achieves this purpose by protecting our natural rights and liberties from concentrated power and excessive democracy. Our Constitution creates a separation of powers and federalism – truly for the first time in modern history – to prevent the government from becoming so strong that it threatens our natural rights. Federalist No. 10 proposed the idea that the great threat to our rights comes from majority faction. Human history teaches us, alas, that numerical majorities frequently seek to control government, and use the state to violate the rights of the minority. Because man is fallen and the desire for power was, as James Madison described it, “sown in the nature of man,” government had to be limited. For, as Madison said, “if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” But men are not angels. The slaveholders used the power of government to deny the fundamental natural rights of the slaves; the segregationists used the state to oppress the freed men and women – including my ancestors.

 
As we meet today, it is unclear whether these principles will endure. At the beginning of the 20th century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them the 28th President, Woodrow Wilson, called it progressivism. Since Wilson’s presidency, progressivism has made many inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever. Progressivism was not native to America. Wilson and the progressives candidly admitted that they took it from Otto von Bismarck’s Germany, whose state-centric society they admired. Progressives like Wilson argued that America needed to leave behind the principles of the Founding and catch up with the “more advanced and sophisticated people of Europe.”

 
…Progressivism was the first mainstream American political movement—with the possible exception of the pro-slavery reactionaries on the eve of the Civil War—to openly oppose the principles of the Declaration. Progressives strove to undo the Declaration’s commitment to equality and natural rights, both of which they denied were self-evident. To Wilson, the inalienable rights of the individual were “a lot of nonsense.” Wilson redefined “liberty” not as a natural right antecedent to the government, but as “the right of those who are governed to adjust government to their own needs and interests.” In other words, liberty no longer preceded the government as a gift from God, but was to be enjoyed at the grace of the government. The government, as Wilson reconceived of it, would be “beneficent and indispensable.” Progressives such as John Dewey attacked the Framers for believing that “their ideas [were] immutable truth good at all times and places,” when instead they were “historically conditioned, and relevant only to their own time.” Now, Dewey and the progressives argued, those ideas were to be repealed.

 
…We can argue over whether you believe in immutable, absolute natural rights or the Wilsonian idea of ever-progressing history. Indeed, your School of Civic Leadership was created to host such arguments. But let me ask you to consider the consequences. European thinkers have long criticized America for remaining trapped in a Lockean world, with its weak decentralized government and strong individual rights. They say our 18th century Declaration has prevented us from progressing to higher forms of government. Why has America never had a socialist party, one German sociologist famously asked. But we were fortunate not to trade our Lockean bounds for the supposedly enlightened world of Hegel, Marx, and their followers. Fascism – which, after all, was a national socialism – triggered wars in Europe and Asia that killed tens of millions...

None of this, of course, was an improvement on the principles of the Declaration. Tocqueville’s Democracy in America is largely about how America owed its superiority over Europe to its conscious decision to reject central planning and administrative rule root and branch. Progressivism, in other words, is retrogressive. As Calvin Coolidge said on the 150th anniversary of the Declaration,

 

If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people.

 

When Abraham Lincoln addressed the assembled crowd at Gettysburg, they had gathered to memorialize the past. But Lincoln’s address urged them to not do so with complacency. Instead, Lincoln said, they would look to the past as inspiration to take them to greater heights in the future. “It is rather for us,” Lincoln said, 

To be here dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave their last full measure of devotion. That we here highly resolve that these dead shall not have died in vain, that this nation shall have a new birth of freedom, and that this government, of the people, by the people, and for the people, shall not perish from the earth.

 
As we are gathered to celebrate this 250th anniversary of the Declaration, it may be tempting to do so as if we are passive spectators. It may be tempting to get out our tea and crumpets, treat the Declaration like a shiny object or a keepsake, and listen to the sound of our own voices. We could get into debates over whose conception of the Founding is better, over how we were so much better than the Founders, over what we would do differently. We could be careful to not do anything that exposes us to criticism, costs us friends, or hurts our career prospects.

 
…These are the choices that will confront you, and you must decide whether to respond with timidity or with courage, as the signers of the Declaration did. It will, of course, not be easy. It never is. But, if, like me, you need a greater source of strength than yourselves, you will need to rely on your faith to guide and sustain you through it. You will disappoint people you thought were friends and endure personal attacks as well as attacks on those you care about.

But, if you stand, you will find that courage, like cowardice, can be habit forming – a part of your life and who you are. And, I may dare say, it is liberating. You will also be a living example for others to emulate. So by all means, celebrate the Declaration of Independence. It is the most important act in American history, the foundation of our Constitution and, as Lincoln said, “the sheet anchor” of our republic. But, I implore you to celebrate it by standing up for it, by defending it, and by recommitting yourselves to living up to its ideals. Channel the courage of the men who faced down a king and signed it and, or of a President who led the nation in a Civil War rather than permit this house to be divided by the great contradiction of slavery. Take increased devotion to that cause for which they gave their last full measure of devotion.

 
And, “…with a firm reliance on the protection of Divine Providence…[let us] mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

Thank you, and may God continue to bless this great nation.”

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Selections from speech given April 15, 2026, at the University of Texas at Austin

Why Colleges Don't Teach the Federalist Papers

By: Peter Berkowitz, Senior Fellow at Stanford University's Hoover Institution

"It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century. Yet despite the lip service they pay to liberal education, our leading universities can't be bothered to require students to study The Federalist—or, worse, they oppose such requirements on moral, political or pedagogical grounds...

The masterpiece of American political thought originated as a series of newspaper articles published under the pseudonym Publius in New York between October 1787 and August 1788 by framers Alexander Hamilton, John Jay and James Madison. The aim was to make the case for ratification of the new constitution, which had been agreed to in September 1787 by delegates to the federal convention meeting in Philadelphia over four months of remarkable discussion, debate and deliberation about self-government.

By the end of 1788, a total of 85 essays had been gathered in two volumes under the title The Federalist. Written at a brisk clip and with the crucial vote in New York hanging in the balance, the essays formed a treatise on constitutional self-government for the ages.

The Federalist deals with the reasons for preserving the union, the inefficacy of the existing federal government under the Articles of Confederation, and the conformity of the new constitution to the principles of liberty and consent. It covers war and peace, foreign affairs, commerce, taxation, federalism and the separation of powers. It provides a detailed examination of the chief features of the legislative, executive and judicial branches. It advances its case by restatement and refutation of the leading criticisms of the new constitution. It displays a level of learning, political acumen and public-spiritedness to which contemporary scholars, journalists and politicians can but aspire. And to this day it stands as an unsurpassed source of insight into the Constitution's text, structure and purposes.

At Harvard, at least, all undergraduate political-science majors will receive perfunctory exposure to a few Federalist essays in a mandatory course their sophomore year. But at Yale, Princeton, Stanford and Berkeley, political-science majors can receive their degrees without encountering the single surest analysis of the problems that the Constitution was intended to solve and the manner in which it was intended to operate. Most astonishing and most revealing is the neglect of The Federalist by graduate schools and law schools. The political science departments at Harvard, Yale, Princeton, Stanford and Berkeley—which set the tone for higher education throughout the nation and train many of the next generation's professors—do not require candidates for the Ph.D. to study The Federalist. And these universities' law schools, which produce many of the nation's leading members of the bar and bench, do not require their students to read, let alone master, The Federalist's major ideas and main lines of thought.

Of course, The Federalist is not prohibited reading, so graduates of our leading universities might be reading it on their own. The bigger problem is that the progressive ideology that dominates our universities teaches that The Federalist, like all books written before the day before yesterday, is antiquated and irrelevant. Particularly in the aftermath of the New Deal, according to the progressive conceit, understanding America's founding and the framing of the Constitution are as useful to dealing with contemporary challenges of government as understanding the horse-and-buggy is to dealing with contemporary challenges of transportation. Instead, meeting today's needs requires recognizing that ours is a living constitution that grows and develops with society's evolving norms and exigencies.

Then there's scientism, or enthrallment to method, which collaborates with progressive ideology to marginalize The Federalist, along with much of the best that has been thought and said in the West. Political science has corrupted a laudable commitment to the systematic study of politics by transforming it into a crusading devotion to the refinement of method for method's sake. In the misguided quest to mold political science to the shape of the natural sciences, many scholars disdainfully dismiss The Federalist—indeed, all works of ideas—as mere journalism or literary studies which, lacking scientific rigor, can't yield genuine knowledge. And thus so many of our leading opinion formers and policy makers seem to come unhinged when they encounter constitutional arguments apparently foreign to them but well-rooted in constitutional text, structure and history. These include arguments about, say, the unitary executive; or the priority of protecting political speech of all sorts; or the imperative to articulate a principle that keeps the Constitution's commerce clause from becoming the vehicle by which a federal government—whose powers, as Madison put it in Federalist 45, are "few and defined"—is remade into one of limitless unenumerated powers.

By robbing students of the chance to acquire a truly liberal education, our universities also deprive the nation of a citizenry well-acquainted with our Constitution's enduring principles."

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Source: The Wall Street Journal, May 6, 2012

The Frame of Silver

Discovered after his death, Abraham Lincoln’s secretary found a private record of the President’s that was never published. Reflecting on the relationship of the Declaration of Independence to the Constitution, Lincoln wrote the following personal meditation on Proverbs 25:11 – “A word fitly spoken is like apples of gold in pictures of silver.” 

He believed that the expression of the Declaration of Independence declaring “liberty to all” –

…was the word "fitly spoken" which has proven an "apple of gold" to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn and preserve it. The picture was made for the apple -- not the apple for the picture.[1] 

Lincoln identifies the Declaration’s principles of liberty and equality as the heart and soul of the Constitution that it was designed to protect and preserve. The Declaration of Independence states: 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

To summarize these basic principles: 

1. It is a self-evident truth is that all men are created equal; 

2. Another self-evident truth is that all men are endowed with natural (or inherent) rights from their Creator, including life, liberty and the pursuit of happiness; 

3. Governments are instituted among men to secure these rights and to provide for their safety; and 

4. Governments derive their just powers from the consent of the governed. 

Therefore, how do these principles both define the purpose of government and offer guidance on the proper constitutional form of government? How does the Constitution provide a frame of protection for these principles?

The first proposition is that the primary purpose of government is to secure the natural rights of men. The Framers recognized that two great threats to liberty and equality in a democratic republic were: (1) factions; and (2) tyranny – encompassing the human tendency to exercise arbitrary power. In Federalist No. 10 [2] James Madison defines a faction as either a minority or a majority of citizens who are united “adverse to the rights of other citizens.”[3] He concludes that since we are unable to remove the causes of faction we can only control its effects. Madison shows that through the “republican principle” of the Constitution a majority may defeat minority factions “by regular vote.”[4] Further, he argues that through the mode of representation in a republic, a chosen body of citizens (the representatives) will “refine and enlarge the public views”[5] to check and ameliorate majority factions. The second remedy is to “extend the sphere” of the republic by expanding the number of citizens and enlarging the territory so that it will be “less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”[6] He concludes that through Constitutional representation and a large republic, the people may be able to defeat the diseases of minority and majority factions.

In regard to guarding against tyranny, Madison stated in Federalist No. 47, the maxim that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[7] Because of this danger, in Federalist No. 51 he writes that “all may admit” that the preservation of liberty requires a “separate and distinct” exercise of the different powers of government. Following this principle of separation, Madison then states that it is evident that each department (or branch) should have “a will of its own” and “as little agency as possible in the appointment of the members of the others.”[8] The fundamental assertion of Madison and the Framers of the Constitution is that when given power, men are most often influenced by ambition. The Founders had also learned from history and experience that those who are given authority almost always exercise unjust dominion, or control, over others (which may also be characterized as “arbitrary power”). As Madison observed in Federalist No. 15, “Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.”[9] Thus, in order to “check” that rival ambition, and the inevitable arbitrary or unjust exercise of power, others in authority must be vested with an equal or offsetting “balance” of power. The end result was a Constitutional system designed to let “ambition counteract ambition,” thus restraining the tendency of human nature to exercise arbitrary power.

Another key feature of the Constitution designed to protect our rights adopted by the Convention was a bicameral legislature. The Framers acknowledged that “in a republican government, the legislative authority necessarily predominates.”[10] They had observed and experienced the “multiplicity of laws,” the “mutability of laws,” and the “injustice of the laws” enacted by the majorities in State legislatures.[11] The agreed remedy at the federal level was to “divide the legislature into different branches” and provide for “different modes of election and different principles of action.” [12] The debate over legislative powers in the Convention eventually led to the establishment of the House of Representatives and the Senate imbued with different modes and terms of representation, separately defined powers, and a right of Executive veto over legislation.

Significantly, the Framers also wisely provided for a federal government of enumerated powers. Each vesting clause and the respective powers delegated by the people to each branch of government were vigorously debated and carefully worded. James Madison stated:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce …The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people …. [13]

Madison also wrote, “The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general.” [14] Thus, pursuant to the precepts of the Declaration, federal powers under the Constitution are “few and defined” and “confined to specific objects.” Additionally, by dividing governmental powers between the federal government and the States in a compound republic, the construct of federalism provides “a double security arises to the rights of the people.”[15]

The second proposition from the Declaration is that “Governments derive their just powers from the consent of the governed.” Following this principle as a guide, the Framers infused the Constitution with recurring methods of popular consent. Because the primary form of consent in a republic is regular elections, the Convention specified that members of the House of Representatives would be elected every two years, Senators every six years, and Presidents every four years. And, in larger sense, the Framers also provided the means by which the Constitution could be amended by the consent of the people (through Congress and the States), which resulted in the Bill of Rights and, over time, seventeen additional Constitutional amendments.

However, as an even more important and essential element of consent, the Constitution was “ordained and established” by “We, the People.” In other words, the Declaration affirms that because we each possess individual natural rights, the only proper source of governmental power is the people themselves, who are sovereign. As John Jay wrote in Federalist No. 2, “Nothing is more certain than the indispensable necessity of government; and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers.”[16] To accomplish this, the Constitution was adopted by the people directly through ratifying conventions in the States, not through their legislatures. As Madison described in Federalist No. 39, “the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose.”[17] 

In summary, as guided by the Declaration, the Constitution’s republican forms, separation of powers, bicameral legislature, and enumerated powers secure our rights against the enemies of factions and tyranny. In all of these ways and others, the Constitution upholds the Declaration’s injunctions and serves as a fitting “frame of silver” to its principles.

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[1] Roy P. Basler, ed., The Collected Works of Abraham Lincoln (Rutgers University Press, New Brunswick, New Jersey, 1953), 4:168 (italics in original). 

[2] Page references are to the Charles Kesler, Signet Classics paperback edition of The Federalist Papers (2003). 

[3] Ibid. p. 72. 

[4] Ibid. p. 75. 

[5] Ibid. p. 76.

[6] Ibid. p. 78. [7] Ibid. p. 298. 

[8] Ibid. p. 318. 

[9] Ibid. p. 106. 

[10] Federalist No. 51 p. 319. 

[11] James Madison, “Vices of the Political System of the United States,” April 1787, in Gordon Lloyd, ed., The Constitutional Convention: Core Documents (Ashbrook Center, 2018), pp. 41-43 (cited as Core Documents). 

[12] Federalist No. 51, p. 319. 

[13] Federalist No. 45, p. 289. 

[14] James Madison, Speech in the House of Representatives, January 10, 1794; Lance Banning, ed., Liberty and Order (Liberty Fund, Indianapolis, 2004), p. 158 (emphasis added). 

[15] Federalist No. 51, p. 320. 

[16] Federalist No. 2, p. 31. 

[17] Federalist, No. 39, p. 239.

Executive Prerogative Power under the U. S. Constitution

John Locke, in his Second Treatise on Government, defines “prerogative power” as: "The power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public …therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe." (Chapter XIV, Section 160).

    Pursuant to the doctrine of prerogative power, the President as chief executive has ostensible authority to act with discretion—sometimes without or against legislative direction or consent—for the public good, particularly during emergencies, insurrections, or war.

    The Constitutional basis for prerogative power is two-fold: First, in the view of the Founders, the Declaration of Independence and the Constitution are principally based on Lockean principles among others. As the Declaration states, the “Laws of Nature and Nature’s God” (or natural rights, inherent in all men as “endowed by their Creator” ). According to Locke, as embraced by the Founders, individuals in the state of nature possess a natural “executive power” to judge and punish violators of natural law to defend their life, liberty, and property. Upon forming a civil society, this right is delegated to the government (but retained in measure by each individual for purposes of self-defense). This natural “executive” power as invested at the government level, then extends to the defense and protection of the people and society itself. Secondly, Article II of the Constitution grants the President all “executive power” with broad authority to act in foreign affairs, national security, and emergency situations, and with implied authority to act beyond specifically enumerated powers. While often contested, prerogative power has been exercised by U.S. Presidents from George Washington to today. Again, the primary test is that this discretionary power is to be exercised for purposes of the public good and national security.

    In President Thomas Jefferson’s letter to John B. Colvin, September 20, 1810, Jefferson states that the highest obligation of a nation’s leader is not just to observe the law, but to preserve and to save the country when in danger: 

The question you propose, whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

    Jefferson continues his letter by citing several examples, including saving a ship at sea lacking provisions by force against another refusing supply, the hypothetical purchase of Florida for a reasonable sum when Congress is not in session for three weeks when the sale could be lost within days, and lastly the Aaron Burr – General Wilkinson situation in New Orleans. He concludes that: …[there is] a law of necessity and self-preservation, and rendered the salus populi supreme over the written law…. In these the example of overleaping the law is of greater evil than a strict adherence to its imperfect provisions. It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake….

    Thus, Jefferson’s constitutional justification for executive prerogative is that salus populi is supreme over the written law – that being “the safety or welfare of the people,” or when “some of its very high interests are at stake.” President Jefferson’s arguments for the exercise of prerogative power echo his own actions from a few years earlier in 1803 when he purchased the 828,000 square-mile Louisiana Territory on behalf of the United States from France for $15 million without Congressional approval (although later ratified). Despite believing it was unconstitutional because the Constitution didn't explicitly authorize acquiring new territory, Jefferson gave precedence to national security and economic advantages, such as controlling the Mississippi River and effectively blocking France and Spain from further colonization of North America. Initially, Jefferson had considered seeking a constitutional amendment as the only legitimate way to proceed, but he was advised that Napoleon Bonaparte might withdraw the offer if delayed (similar to the Florida example in his Colvin letter). As an interesting note, Alexander Hamilton supported the purchase without such an amendment.

    Jefferson had also previously exercised executive prerogative by authorizing the U.S. Navy to proceed against the Barbary pirates (1801–1805) seeking to defend U.S. shipping and Atlantic commerce from piracy and extortion without a formal congressional declaration of war. While initially ordering only defensive actions, he argued that Tripoli's attack on the American flag justified allowing U.S. ships to “chastise their insolence—by sinking, burning or destroying their ships.”

    Abraham Lincoln’s constitutional justification for his Presidential use of prerogative power was centered on his oath of office, which is set forth in the Constitution: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” In his letter to Albert Hodges, April 4, 1864 (just 10 days before his assassination), Lincoln wrote concerning his interpretation of the oath’s meaning and application to preserve the Union and the Constitution during the Civil War, while he resisted the temptation to “act in mere deference” to his personal feelings on slavery: 

It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power… I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government---that nation---of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.

    The ultimate example of Lincoln’s use of prerogative power may be seen in his issuance of the Emancipation Proclamation on January 1, 1863. After much deliberation, using his authority as Commander-in-Chief during wartime to seize “enemy property”—enslaved people—which he justified as a necessary military measure to preserve the Union. The proclamation, a wartime executive order, declared “that all persons held as slaves” within the rebellious states of the Confederacy “are, and henceforward shall be free.” When he issued the Proclamation, he was very concerned that he had to articulate a constitutional basis for emancipation; so, he did not free all the slaves in the United States or even in all the slave states. As commander in chief, the Proclamation freed slaves only in states where the people were “in rebellion against the United States,” and then only on the ground that it was “a fit and necessary war measure for suppressing said rebellion.”

    The inherent dangers to the exercise of executive prerogative power lie in the discretion, moral character, and wisdom of the President himself. A narrow or corrupt view of the public good may clearly lead to abuses of this power. Additionally, executive prerogative is often exercised broadly and quickly in “heated” and inherently dangerous situations, creating the opportunity for arbitrary, partisan, short-sighted, or self-interested decision-making. Greater risks may also exist in its application in foreign affairs with the threat of expanding conflicts. Challenging expected norms of transparency and democratic deliberation, reliance on executive discretion can directly contribute to weakening the checks and balances among and between the branches of government. Finally, a president’s use of prerogative powers are often viewed and ultimately judged only in hindsight –by elected representatives and the people themselves. As Jefferson reflected, “It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake…”

By: J. David Gowdy