How to Think Constitutionally About Prerogative: A Study of Early American Usage

Steilen provides a historical study of how early American constitutional framers understood and addressed executive prerogative power. The article traces the English constitutional tradition of royal prerogative and examines how American founders debated whether and how to incorporate prerogative concepts into the presidential office. Steilen analyzes early constitutional texts, founding-era documents, and judicial decisions to show that prerogative was not simply rejected in favor of rigid separation of powers, but rather reimagined within a constitutional framework. The author explores specific prerogative powers including treaty-making, appointments, and emergency powers, demonstrating that framers contemplated executive discretion while subjecting it to constitutional constraints. Steilen argues that understanding prerogative as a historical constitutional concept rather than arbitrary authority illuminates contemporary debates about executive power, particularly regarding national security and emergency authority. The article contributes to originalist constitutional interpretation by recovering historical understandings of executive power that account for flexibility and discretion within constitutional bounds.

Keywords: prerogative power · executive power · constitutional history · founding era · presidential authority · separation of powers