William J. Quick writes in the November 2001 forward to this 1948 book by Clinton Rossiter:
* “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.”
-Letter of Thomas Jefferson to John B. Colvin, Monticello, September 20, 1810* How shall we be governed during the War on Terrorism? Definitely not as we have in the past. Existing governing practices comprehensively failed to protect the people and cannot be continued. Since we have been forced to face the horrors of terror attacks on the United States we likewise need to consider the sort of government such a war will force us to adopt. The “inescapable truth,” Clinton Rossiter wrote in his classic study of modem democracies in crisis, Constitutional Dictatorship, is that “No form of government can survive that excludes dictatorship when the life of the nation is at stake.” Saving the country, as Jefferson wrote, is the highest obligation. Rossiter added the stunning thought that dictatorships can be constitutional. Following the last forty years of judicial superiority, his concept of a “constitutional dictatorship” is more shocking today than when he wrote it.
Rossiter concluded, based on the most thoroughgoing study of the use of emergency powers in modem democracies-Weimar Germany, France, England, and the United States-that the facts of history demonstrate that, from time to time, constitutional dictatorship has served as an indispensable factor in maintaining constitutional democracy.
* Francis Biddle, Roosevelt’s attorney general, was asked later whether the Japanese internment decision was a difficult one for Roosevelt; he explained that he did not think “the Constitutional difficulty plagued him.” Moreover, Biddle continued, the “Constitution has not greatly bothered any wartime President. That was a question of law which ultimately the Supreme Court must decide. And meanwhile-probably a long meanwhile-we must get on with the war.”
Jefferson did not believe he had authority under the Constitution to buy the Louisiana Territory. He did it because it was essential for the country’s future, and Napoleon’s difficulties gave us an opportunity that might never be repeated.
* American law schools, however, teach today, as they have taught generations of lawyers, that the U.S. Constitution is never suspended; it is at all times in full force and effect.
* The trouble with this view of course, is that it is inaccurate. Rossiter proves this over and over in his analysis of presidential action during the Civil War, World War I, the Depression, and World War II. The problem created by our law schools teaching Supreme Court rhetoric rather than historical truth is that the legal profession, critical in all aspects of the use of emergency power, is misinformed. They should all read Rossiter as soon as possible.
* Rossiter outlines the principles of constitutional dictatorship as follows:
First, the complex system of government of the democratic, constitutional state is essentially designed to function under normal, peaceful conditions, and is often unequal to the exigencies of a great national crisis.
Therefore, in time of crisis a democratic, constitutional government must be temporarily altered to whatever degree is necessary to overcome the peril and restore normal conditions. This alteration invariably involves government of a stronger character; that is, the government will have more power and the people fewer rights.
* The crisis institutions of martial law, executive legislation, and the suspension of civil rights facilitate the overthrow of the constitution by revolutionary or reactionary interests.
The other major danger of the constitutional dictatorship is that the employment of special crisis institutions will work changes in the permanent structure of government and society: “No constitutional government ever passed through a period in which emergency powers were used without undergoing some degree of permanent alteration always in the direction of an aggrandizement of the power of the state.”
* The emergency, in the case of the War on Terrorism, is open-ended. We are going on a permanent war footing. This makes it different from any of the emergencies analyzed by Rossiter, and which also makes more significant what Rossiter called the “final danger”-that the government by default, rather than design, may lose the will to resume its normal constitutional responsibilities, “that the people along with the rulers will fall into the habits of authoritarian government and fail to insist upon a reestablishment of democratic ways.”
Clinton Rossiter wrote in his 1948 book:
* Consider for a moment the government of the United States which piloted the American people through the crisis of the second World War. In the successful prosecution of a bitter struggle for survival the administration at Washington had continuous resort to actions that would have been looked upon as unconstitutional, undemocratic, and downright
dictatorial in time of peace. Since it was a time of war these actions seemed altogether necessary and proper, and the American people generally gave them their support and applause. The ordinary citizen can list any number of unusual governmental procedures that were instituted in the four years of the war, procedures which only the paramount
necessity of victory in an all-out war could have sanctioned : the Price Control Act, through which Congress handed over lawmaking power to the executive branch of the government; the history-making “destroyer deal,” in which the President disregarded several statutes; the strict control of the American free economy by a host of temporary governmental agencies, most notably the WPB and the OP A; the direct invasion upon the freedom of the individual effected by rationing, the draft, and almost confiscatory taxes; military rule in Hawaii; the forcible removal of tens of thousands of American citizens from their homes on the Pacific Coast; the arbitrary suppression of the seditious
words and periodicals of other American citizens; and the spectacular Army seizure of Montgomery Ward and Company. In these actions the government of the United States demonstrated conclusively that in the maintenance of its own existence it could possess and wield authoritarian power, and yet in the course of these same actions-whatever individual injustices and hardships may have been worked-the pattern of free government was left sufficiently unimpaired so that it functions today in full recognition of the political and social liberties of the American people, and in substantial accord with the peacetime principles of the constitutional scheme. We have fought a successful total war, and we are still a democracy.* Civil liberties, free enterprise, constitutionalism, government by debate and compromise-these are strictly luxury products, and in but a fraction of the governments of man since the dawn of history has the pattern of government and society which the American people take for granted been able to thrive and prosper. “Democracy is a child of peace and cannot live apart from its mother,” writes one noted publicist. “War is a contradiction of all that democracy implies. War is not and cannot be democratic,” adds a respected Justice of the Supreme Court.
* At the very moment when the people of the United States were shouting about the differences between democracy and dictatorship, they were admitting in practice the necessity of conforming their own government more closely to the dictatorial pattern!
* Fire, flood, drought, earthquake, riots, and great strikes have all been dealt with by unusual and often dictatorial methods. Wars are not won by debating societies, rebellions are not suppressed by judicial injunctions, the reemployment of twelve million jobless citizens will not be effected through a scrupulous regard for the tenets of free enterprise, and hardships caused by the eruptions of nature cannot be mitigated by letting nature take its course.
* The government meets the crisis by assuming more powers and respecting fewer rights.
* All the dictatorial actions in the recent war were carried on in the name of freedom. The absolutist pattern was followed and absolutist institutions were employed for one great and sufficient reason: that constitutional democracy should not perish from the earth. The democracies fought fire with fire, destroyed autocracy with autocracy, crushed the dictators with dictatorship-all that they might live again under their complex institutions of freedom and constitutionalism.
* All constitutional countries have made use of constitutional dictatorship.
* The institution of martial rule is a recognition that there are times in the lives of all communities when crisis has so completely disrupted the normal workings of government that the military is the only power remaining that can restore public order and secure the execution of the laws.
* a voluntary transfer of lawmaking authority from the nation’s representative assembly to the nation’s executive, a frank recognition that in many kinds of crisis (particularly economic depressions) the legislature is unequal to the task of day-to-day, emergency lawmaking, and that it must therefore hand over its functions to someone better
qualified to enact arbitrary crisis laws.* The crisis expansion of power is generally matched by a crisis contraction of liberty.
* [The law of necessity] is little better than a rationalization of extra-constitutional, illegal emergency action. The fact remains that there have been instances in the history of every free state when its rulers were forced by the intolerable exigencies of some grave national crisis to proceed to emergency actions for which there
was no sanction in law, constitution, or custom, and which indeed were directly contrary to all three of these foundations of constitutional democracy.* Lincoln: “Every man thinks he has a right to live and every government thinks it has a right to live. Every man when driven to the wall by a murderous assailant will override all laws to protect himself, and this is called the great right of self-defense. So every government, when driven to the wall by a rebellion, will trample down a constitution before it will allow itself to be destroyed. This may not be constitutional law, but it is fact.”
* “The law is made for the state, not the state for the law. If the circumstances are such that a choice must be made between the two, it is the law which must be sacrificed to the state.”
* In the last resort, it is always the executive branch in the government which possesses and wields the extraordinary powers of self-preservation of any democratic, constitutional state.
* The dictatorship is a phenomenon which has intrigued almost all ordinary readers of history and almost no students of law and politics.
* it was not many years after the establishment of the Republic that the rulers of the new Rome were compelled by the stress of the times to go back to the recently discredited monarchical form of government as the only means of saving the state from extinction. The same men who had driven the kings out of Rome and had set up a constitutional government were now forced to admit in practice that this new government was inadequate to the task of its own preservation, and that only a temporary retreat to the kingly power could enable it to carry through to normal times.
* The unitary executive was completely alien to the normal scheme of government in Rome.
* the constitutional history of Rome had as one of its salient features the gradual weakening of executive power.
* The “advice” of the Senate was rarely disregarded by any Roman official.
