Constitutional Dictatorship: Its Dangers and Its Design

Here are some highlights from a 2010 paper in the Minnesota Law Review by two Yale University law professors, Sanford Levinson and Jack M. Balkin:

“I’m the commander-see, I don’t need to explain-I do not need to explain why I say things. That’s the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don’t feel like I owe anybody an explanation.” – George W. Bush

If Americans know one thing about their system of government, it is that they live in a democracy and that other, less fortunate people, live in dictatorships. Dictatorships are what democracies are not, the very opposite of representative government under a constitution.

The opposition between democracy and dictatorship, however, is greatly overstated. The term “dictatorship,” after all, began as a special constitutional office of the Roman Republic, granting a single person extraordinary emergency powers for a limited period of time. “Every man the least conversant in Roman story,” remarked Alexander Hamilton in The Federalist No. 70, “knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator” to confront emergencies caused by insurrection, sedition, and external enemies. No political constitution was well designed, Hamilton believed, unless it could confront emergencies and provide for energetic executive powers to handle them.

Under this view, dictatorship-the power of government officials to act on important matters free of accountability or timely legal checks-is not the opposite of democracy-or what our Constitution calls a “Republican Form of Government.” It is an institutional feature within constitutional democracies that can and should be employed to perform valuable civic functions. From this perspective, “dictatorship” becomes-as it was in the early Roman Republic-a term of description rather than a term of opprobrium.8 It refers to institutions and powers of emergency government that constitution makers might establish to serve the public interest. Indeed, if the institutions are properly designed, “dictatorship” might even have positive connotations-think only of the praise heaped on the legendary Cincinnatus.

* Carl Schmitt offers perhaps the most chilling analysis of all. Although he recognizes the possibility of commissarial dictatorships, where the ultimate goal of dictatorship is restoring the status quo, he assumes that elements of the sovereign dictatorship always lurk in the background, waiting to emerge and to transform any existing political order.74 No matter how well designed a constitutional system might be, the true sovereign will always be able to escape the confines of that design and make exceptions to it.

* Emergency, or at least claims of emergency, are the standard cause and the standard justification for creating dictatorships.

* Machiavelli argued that republics should plan for emergency allocations of power in advance. Does the American constitution meet Machiavelli’s test? Does it adequately build the possibilities of emergency into its design, to avoid the dangers of inertia, impotence, and deadlock yet still preserve republican government? Recall Chief Justice John Marshall’s famous statement in M’Culloch v. Maryland that “[the] constitution [is] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” 95 Notably, the word “crises” is italicized in the original opinion. Nevertheless, the text of the American Constitution is remarkably devoid of specific clauses that give government officials emergency powers. The most relevant example is the Suspension Clause, which allocates to Congress (contra the views of Abraham Lincoln) the power to suspend the writ of habeas corpus, but only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” Moreover, the Suspension Clause says nothing about other kinds of dangers, for example economic meltdowns, fires, floods and hurricanes, or even the invasion of a drug resistant virus. Nevertheless, constitutional emergencies may arise from many different sources.

* The first decade of the twenty-first century has made us all too aware of the various dangers that can plague our social orders; even the cost of terrorist attacks may pale in comparison to the damage wrought by tsunamis, hurricanes, earthquakes, or dangerous viruses. Thus in 2009, the President of Mexico, Felipe Calderon, placed the entire country under a “state of emergency” because of the potential swine flu pandemic. As John Ackerman, chief editor of the Mexican Law Review has explained, this serves to: “concentrate political power in his hands…. [President Calderon] has authorized his health secretary to inspect and seize any person or possessions, set up check points, enter any building or house, ignore procurement rules, break up public gatherings, and close down entertainment venues. The decree states that this situation will continue ‘for as long as the emergency lasts.’. . . This action violates the Mexican Constitution, which normally requires the government to obtain a formal judicial order before violating citizens’ civil liberties. Even when combating a ‘grave threat’ to society, the president is constitutionally required to get congressional approval for any suspension of basic rights. There are no exceptions to this requirement.”

Ackerman notes that Latin America has a “long history of using states of emergency as ploys to … return to authoritarianism.”

* Nikita Khrushchev paid for his commendable caution [regarding the Cuban Missile crisis] with his job, which suggests a degree of accountability that made the Soviet leader significantly less of a full-scale dictator than most Americans assumed.

* John Yoo, the author of the notorious “torture memos,” has argued that, despite American objections to King George III, the President still enjoys the powers possessed by the English monarch at the time of the American Revolution. Although Parliament retained the powers of the purse, Yoo explains, the King possessed unbounded discretion over the use of military force.

* Schmitt’s “sovereign” is the person who can successfully define something as a “crisis” and then basically do whatever he or she thinks necessary to meet the crisis.

* Asserting that the President actually has control over the entire Administration is a bit like the courtiers of King Canute who tried to flatter him by claiming that he could direct even the progress of the ocean’s tides. King Canute, on the other hand, had no such delusions of grandeur.