The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.” For Jefferson, preserving the nation was more important than “a scrupulous adherence to written law.” Colvin-the author of the early-19th-century book The Magistrate’s Guide, and Citizen’s Counsellor, who was then writing about Aaron Burr’s treason-“A strict observance of the written laws is doubtless one of the highest duties of a good citizen: but it is not the highest. ![]() As Jefferson famously wrote in a letter to John B. In contrast, Thomas Jefferson argued that people ought to recognize that emergency power is extra-constitutional but justified. 23,” Alexander Hamilton argued that people should see emergency power as constitutional because “the circumstances that endanger the safety of nations are infinite.” The Constitution, Hamilton insisted, must provide the lawful power for its preservation. There is a long-standing debate about whether the public should view such power as constitutional because necessary or as extra-constitutional but justified. Read: The January 6 Committee’s most damning revelation yetĬonstitutional government depends on following the law, but emergency circumstances may provide for what the 17th-century political philosopher John Locke called prerogative power: power that in ordinary circumstances is unlawful, but that in extraordinary circumstances is warranted. But these were no ordinary circumstances: With Pence huddled in a secure location protected by his security detail, his actions were almost certainly justified. Indeed, a vice president who usurped the president’s constitutional authority, and the Cabinet and military officers who followed his orders, could be committing an impeachable offense. In ordinary circumstances, Pence’s actions would be unconstitutional. ![]() Why did Pence seize constitutional authority that wasn’t his? The country needs answers to this question, and it needs them from Pence, not from his chief of staff or his counsel. The constitutional authority to call out the military to defend the Capitol is vested in the president of the United States, not in the vice president. This is a problem-one that has been overshadowed by the larger events of January 6. According to a taped deposition of General Mark Milley, the chairman of the Joint Chiefs of Staff, Pence “issued very explicit, very direct, unambiguous orders” to him and Secretary of Defense Christopher Miller: “ Get the military down here. On January 6, 2021, from a parking garage under the Capitol Visitor Center, then–Vice President Mike Pence ordered the military to defend the Capitol against a violent insurrection.
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