Balkinization: Defining Dictatorship

Defining Dictatorship

Sandy Levinson

Bart DePalma asks me a completely fair question: How do I define "dictatorship"? He suggests that dictators by definition cannot be elected, that they come to power through coups, killing off the opposition, or however. As an empirical matter, that may often be the case, but I don't think that the concept excludes election. After all, the Roman model of dictatorship was an elected one. It was precisely the election that made the dictatorship legitimate.which was no small advantage. One can speak of at least aspects of the same phenomenon with regard to the Nazi takeover in 1933.

So my concept of "dictatorship" does not necessarily require that one initially gain power illegitimately. Rather, it has to do with with a quite different aspect of politics, which is accountability. My concern about the present system of government (and this concern is not, contrary to what some of you think, limited to my particular concerns about President Bush), is that we give, through (presumptively) legitimate elections entirely too much power to the given individuals who are elected to the presidency that they can use in basically unaccountable ways. This is clearest, of course, with regard to the military/foreign policy aspects of the presidency, but the veto power, whose importance is greatest with regard to domestic politics, is also part of this analysis. If we're talking of a first-term president, then there is one obvious mechanism of accountability, which is the up-coming election, given the almost certain desire of a first-term president to be re-elected. But one a president is re-elected, that mechanism literally disappears overnight. The one thing we knew about Bill Clinton on January 20, 1997, as was true with George W. Bush on Jan. 20, 2005, is that neither would ever have to face the electorate again. They are free to think of their "legacies" and have every incentive to "act boldly" because they don't face ordinary constraints that first-term presidents feel.

There are other mechanisms of accountability, of course, including vigorous oversight and the (theoretical) possibility of impeachment. But even vigorous oversight may not change a president's determined course, and impeachment, for reasons I've argued elsewhere, is much too clumsy a weapon, especially if one is more concerned, as I am, by disastrous misjudgment and incompetence than by criminality.

As I noted in a "comment" to the earlier thread, one has to recognize the limited nature of our particular presidential dictatorship. Every president learns how little effective power he/she has with regard to a vast array of domestic policy issues. And, most importantly, there is the term limit: I am not worried by the prospect that President Bush, or even Mr. Cheney, will assert an ability to remain in office after 2009. All of these factors amply distinguish the powers enjoyed by an American president from those enjoyed by those we are more inclined to label as "dictators." When push comes to shove, though, it is important to recognize that there are indeed dictatorial elements of the American presidency and that, since World War II, they have been on the upswing. Some of this is because of the press of international events and the need for quick resolution at times. But some of it comes from the ability of a president to dominate the media and take advantage of the Constitution's assignment to the President of the role of "head of state" in addition to simply being what Ross Perot would have called simply our "employee in chief." I'm no royalist, but I think that the Brits are well served by splitting the head of state and head of government roles, which is one of the explanations, I believe, for the unsentimental treatment of failed (or failing) prime ministers by their own parties. Gerhard Casper delivered lectures at several colleges last year talking about "Caesarist" tendencies in the modern presidency, which I certainly think exist.

I've been chided by Eugene Volokh and others for using terms like "dictatorial," "authoritarian," or "Caesarist," let alone "fascist," to refer to current American political figures. My own view is that all of these can be (though often are not) useful analytic terms. Certainly Max Weber thought that "Caesarist" was an analytic category and not simply a term of opprobrium, as was true of Clinton Rossiter's invocation of the idea of "constitutional dictatorship."

In any event, this is how I use a term like "dictator" to refer to our own president: The ability to make basically unilateral, and potentially sweeping, decisions of literal life and death without having to fear being held accountable for those decisions, where the most important mechanism of accountability is fear of losing one's job.

Posted 5:43 PM by Sandy Levinson [link]

Comments:

Prof. Levinson:

I'm no royalist, but I think that the Brits are well served by splitting the head of state and head of government roles....

I concur. I put forth this sentiment during the Reagan years; I thought that if people wanted a figure-head to cut ribbons, a "King Reagan" might serve admirably, as long as the eedjit wasn't allowed to get his hands on the machinery of gummint, and we left such to less 'telegenic' but more capable people....

Dubya, of course, has shown that in spades; we could let him be "Commander Codpiece" and cheer on the troops in whatever Gilbert'n'Sullivan costume suited him, as long as the fist in the air "Feels good!" wasn't concomitant with the actual assignment to brutal death of our soldiers and the plundering of our treasury.

But lacking that, can't we just impeach him and let him go on to the lecture circuit stirring up the RW rabble, or doing a "talking heads" impression on the WSJ Online and the cable snooze shows?

Cheers,

Cheers,

# posted by

Arne Langsetmo : 6:38 PM

Professor Levinson:

I appreciate your detailed response to my query.

You make a facially compelling argument that a President is less accountable in his or her second term than your average representative or senator because the President cannot run again and face the judgment of the American voters. However, I wonder if the use or abuse of executive foreign policy power is more a function of events rather than proximity to an election?

For sure, you can point to end of second term abuses of regulatory and pardon powers to support your thesis. I would suggest, though, that exercises in foreign policy and military power which I would guess you would find excessive are reactions to events and can happen as easily in first and second terms.

For example, nearly all of Mr. Bush's exercises of executive power which have been critiqued here and elsewhere were performed in his first term after 9/11 and as the elections which impose accountability drew near.

Likewise, Mr. Clinton's threatened invasion of Haiti occurred in his first term in reaction to bloody fighting there.

While this operation occurred in the third year of his second term, Mr. Clinton's bombing campaign against Serbia without congressional approval appears to be in direct reaction to Serbia's ethnic cleansing of Kosovo just months before.

Finally, the private funding channels which were eventually used to funnel Iranian funds to the Nicaraguan Contras were established during the election year of 2004, while the second term Iran Contra operation itself was a direct reaction to kidnapping of American hostages and the Boland Amendment.

I have doubts whether allowing these Presidents to run for third terms would have affected these decisions to any appreciable degree.

Could you explain why you believe the joining of head of state (which is mostly a ceremonial position) and head of government (which is where the power lies) makes it more likely that our President is more "Ceasarist" than a pure head of government like the British PM. I would suggest that the fact that the British PM is both the chief executive and the head of the legislature grants him even greater power and discretion than the American President.

I think you have made a stronger argument for accountability by suggesting the American adoption of a variation of the British vote of no confidence system. I agree that votes of confidence do provide a more immediate electoral accountability than our scheduled elections.

# posted by

Bart DePalma : 6:55 PM

When democracy granted democratic methods for us in the times of opposition, this was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of opposition.

# posted by

JP Stormcrow : 1:59 AM

Oops, was just previewing the quote above before adding my comment. It is from Goebbels and is a succinct description of the transition from election to dictatorship. (And I am not knowledgable enough to really opine on whether they had in fact "openly declared" their intentions to shut down the democratic process once in power.)

And I am with Arne - I thought Reagan would have made an OK symbolic head-of-state. Bush would have been a shameful one, but as Arne notes, at least he would not have been able ot do any "real" damage. Don't call it King - just call it "Head Guy the pundits declare everyone wants to have a beer with". (And I'm fine to keep the sexism in the title, as long as it frees up women to pursue the real power on eqyual footing.)

# posted by

JP Stormcrow : 2:12 AM

Quotation: "where the most important mechanism of accountability is fear of losing one's job".
What about impeachment? Difficult though its use might be, a president couldn't rule out this extreme possibility, could he?

# posted by

Anonymous : 7:13 AM

Sandy wants a mechanism which will bring the Executive to heal even if the Legislature is narrowly divided, with cowardly leadership. A kind of constitutional substitute for political will. At least, that's the best I can figure from his dismissive attitude towards the tools Congress already has to deal with the Executive: They apparently don't count because THIS Congress can't/won't use them.

# posted by

Brett : 7:32 AM

Sandy, surely you've noticed that the only people who "chide" you for describing the war criminals in Washington as "fascists" etc. are people who are apologists for these same fascists. Don't be deterred! There is enough cowardice and timidity in evidence on the Balkanization blog as it is. Keep doing your part to bring candor and straight talk to the discussion! Force the apologists to explain why the descriptive terms in question are not, in fact, wholly apt.

# posted by

Brian Leiter : 7:36 AM

The principal question would seem to be what mechanism of accountability works best. As many behaviorists might well say, frequency of feedback is very important to affecting behavior. With that in mind, votes of no confidence, if they had real consequences, could be seen as more effective than the prospect of losing elections.

In the past, however, its also evident that the potential of damage to one's own political party was another immediate material consequence that constituted immediate feedback with the potential of affecting lame duck presidents. That, however, is not part of a formal framework in our system. Currently the president seems to be acting with near-total oblivion to the damage he's inflicting on his own party, ever after fairly obvious evidence of it before his very eyes.

# posted by

John : 9:28 AM

I don't understand what Bush's lame-duck-ness has to do with it. A first-term president gets to serve the full four years (unless he's impeached & convicted) too. I can't see how the fact that Bush has to leave in 2009 could possibly make our system less accountable. Our system wouldn't be any more accountable if we repealed the 22A, I don't think. A first-term president is just as free as Bush to act as boldly as he likes; the worst that can happen to him is what the 22A requires of Bush in any event. If "well, he'll be gone in 4 years if we don't re-elect him, and earlier if we impeach & convict him" is good enough for the first-term president, then "well, he'll be gone in 4 years under the 22A, and earlier if we impeach & convict him" should be good enough for a second-term president.

# posted by

Chris : 10:51 AM

Chris - I think it has to do with some reasonable assumptions about the psychology of political leaders. No one makes it to the peaks of political authority without being ambitious, often absurdly so. For such a person, the threat of not retaining office really is quite powerful.

# posted by

X.Trapnel : 12:27 PM

X--But there wouldn't be any additional threat against Bush if the 22A were repealed. Any threat from non-re-election is already imposed by the 22A itself! The idea would have to be that we offer additional terms as a reward for not misbehaving. So the argument is that the electorate needs to have this possible reward in order to curb bad leaders, and that this tool is more important to the accountability of representatives than is guarding against the possibility of endless re-election. That seems pretty implausible to me. I doubt many people think that we'd get more accountable leadership out of Chavez or Putin if we relaxed their term limits.

# posted by

Chris : 1:55 PM

I don't think that impeachment serves, empirically, as an effective means of accountability, not least because it invites what to most members of the public will be a legalistic discussion filled with mumbo jumbo about "high crimes and misdemeanors" rather than a politically-mobilizing discussion about the actual capacity for wise (or at least non-disastrous) judgment displayed by an incumbent.

I'm an agnostic about the 22nd amendment. On balance, I think it's probably a good thing, given the president's ability to use the prerequisites of office to intimidate members of his/her own party and to cominate the airwaves (not to mention having "Hail to the Chief" precede entrance into a room). But a real cost of the Amendment is the removal of whatever restraints might be attached to thinking about having to face the voters again.

# posted by

Sandy Levinson : 2:03 PM

Sandy,

But, given the possibility that there could be nationwide (or focused) vote-rigging for properly connected or supported Presidents, is it better to have an absolute bar to prevent quadrennial shenanigans?

# posted by

Fraud Guy : 2:51 PM

Mr. Levinson,

Your dismissal of impeachment as a blunt weapon seems of a piece with your dismissal of the Constitution as a document that needs revising and tweaking along lines you've described in your book.

However scholarly your reasoning is in that book, though, I say you do your readers and your country a grave disservice by warning of "legalistic discussion filled with mumbo jumbo about "high crimes and misdemeanors" rather than a politically-mobilizing discussion about the actual capacity for wise (or at least non-disastrous) judgment displayed by an incumbent."

That's precisely what impeachment can and should be for. We have the means and the tools, we have a few voices arguing to use them. You should be one of them. Instead, you argue we should be going back to the drawing board with the Constitution itself. You should know there isn't time for that -- not to mention knowing full well that we'd get "legalistic discussions" in spades with such an approach.

You, and Jack Balkin, and Marty Lederman all rightly decry the myriad and systematic abuses of this administration, but (as far as I'm aware) you all seem to fail to draw the constitutional consequence: that we should and must impeach these people.

At some point, this blog and its piecemeal constitutional and legal arguments and speculations is a waste of time if no one here will take that position, or at least argue with it seriously.

In your case, it seems you'd prefer a constitutional remedy -- impeachment -- to fail or not even be attempted, so things can get better in the exquisite and precise way that you prefer. If I'm wrong about that, please correct my impression; if not, I think that's a destructive attitude.

# posted by

Thomas Nephew : 3:16 PM

Levinson: "But a real cost of the [22nd] Amendment is the removal of whatever restraints might be attached to thinking about having to face the voters again." But of course, a first-term President doesn't have to face the voters again. The possibility of re-election only serves as a possible reward, since the only sanction--removal from office--would be imposed by a term limit anyway.

I'm with those who think the talk of a constitutional amendment seems odd. That requires convincing 2/3 of the Senate, plus 2/3 of the House, plus 3/4 of the states, that there's a problem. But impeachment only requires a majority of the House and 2/3 of the Senate.

# posted by

Chris : 3:47 PM

Mr. Nephew asks a fair and serious question. My antagonism to the impeachment clause is based on my belief impeachment "works" if and only if there is clear "smoking gun" evidence of what lawyers (and the public) across the political spectrum are willing to consider "high crimes and misdemeanors." That worked with Nixon; it most definitely did not work with Clinton, since many eminent lawyers were willing to argue either that he had not committed perjury or that perjury was not such a big deal as to warrant impeachment. That is, the legalism attached to the Impeachment Clause generates a kind of conversation that is both unlikely to be effective in getting rid of a president AND often truly beside the point with regard to the actual reasons why one would like to be rid of him/her.

I read Mr. Newphew to say that I and other people on this blog are nonetheless revealing ourselves as faithless to the Constitution precisely because there IS evidence of sufficient criminality by Mr. Bush (and Cheney?) and that as lawyers we have a duty to bring this to the public's attention and demand the invocation of the impeachment remedy. Given my own strongly expressed views about the importance of criticizing the Constitution and mobilizing my fellow citizens to act on those concerns, I suppose it's true that if I shared the belief in Mr. Bush's criminality, then I should endorse moves toward impeachment, however quixotic they might be. (Nothing, after all, could be more quixotic than endorsing a new constitutional convention!)

Now, do I really prefer that the impeachment remedy "fail"? No. If I believed that a majority of the House and 2/3 of the Senate were willing to impeach and convict, then I'd be on the hustings supporting impeachment. So it's not really a question of preference, of "choosing" to torpedo impeachment so that I can pick up some support for a new constitutional convention (and revised constitution). Rather, as already indicated, I see no scintilla of evidence to support the proposition that a move toward impeachment would be anything other, at this moment, than an empirical failure with bad consequences, among them to establish the proposition that everything that George W. Bush has done is perfectly acceptable as a constitutional matter.

I hope this counts as an adequate, even if not necessarily a persuasive, answer.

# posted by

Sandy Levinson : 5:06 PM

I actually got a lot of flak from my little circle in 2004 when I asserted that, if Bush were re-elected after the ample demonstration of his unconstitutional assumptions of power, that we would be, de facto, living in a dictatorship-lite (the American version) for exactly the reasons Professor Levinson gives.

Surely, when the executive can rule by fiat, when his (or her) underlings are accountable only to him, not to the judiciary and the rule of law (see Libby, Scooter), or to the Congress (see Gonzales, Alberto), or to even to the people directly (election of 2006), then we no longer have government by the people or their elected representatives.

As to remedy, I would suggest that, if the electorate will not punish those who misuse their elected positions, any constitutional remedy will be pointless. Would we substitute rule by judges forcing the executives to properly execute their jobs? That would seem to only replace the elected by those appointed by the elected.

Democracy cannot be imposed on those who are not willing to participate in making it work, and, although the 2006 election gave me hope, I will continue pessimistic until there is evidence that the electorate is ready to hold their elected representatives accountable, in spite of the practiced shuffling of responsibility that our current form of government allows (a shuffling that has been perfected, I may say, by the Congress and the federal bureacracy).

# posted by

C2H50H : 6:27 PM

I see no scintilla of evidence to support the proposition that a move toward impeachment would be anything other, at this moment, than an empirical failure with bad consequences, among them to establish the proposition that everything that George W. Bush has done is perfectly acceptable as a constitutional matter. ... I hope this counts as an adequate, even if not necessarily a persuasive, answer.

I thank you for answering. However, the answer is not persuasive, nor is it adequate.

It's inadequate because there's an ink cloud where your position on Bush's guilt of 'high crimes and misdemeanors' should be. On the one hand, you say
"I suppose it's true that if I shared the belief in Mr. Bush's criminality, then I should endorse moves toward impeachment"; given that you do not yet do so, I deduce you do not share that belief. Yet you go on to admit you'd cheer impeachment if and only if it were likely to result in conviction.

I didn't choose and wouldn't have chosen the description "faithless to the Constitution" or even elementary rule of law -- but it is powerfully suggested in your answer. I feel I must have overlooked some obvious alternative; perhaps you are saying that only smoking gun statutory criminality is grounds for impeachment? A president can be impeached for lying under oath about an affair, but not for lying about the basis for a disastrous war, or failing to honor solemn human rights treaty and statutory obligations?

The part of your answer that I cited ("I see no scintilla")is essentially what my Representative Chris Van Hollen told me and other impeachment supporters in a meeting a couple of weeks ago. It is unpersuasive, and it is unworthy of both of you. I'm sure there's a legal Latin phrase for this, but the failure to even bring a case is much more precedent-setting in this arena and in this context than bringing it and failing because 48% or so of the jury will be in cahoots with the perp. In this and other law blogs, there's nothing half so common as chin-pulling about how the makeup of the Supreme Court will affect the outcome of a pending case. If it came to that, historians and constitutional scholars will weight this Senate's failure to convict by the number of worthless GOP hacks in that Senate, and adjust their conclusions accordingly -- assuming people like yourself lent some weight and conviction to that argument.

But if it never even comes to that, historians and constitutional scholars will shake their heads for hundreds of years. "What more was required?," they'll ask; more cities destroyed? more laws broken? more liberties trampled? more of the Constitution reduced to a dead letter? The case must be brought and its merits argued before the American people; this is our only meaningful chance to do so.

You warn of the "kind of conversation" that will develop about the hoary phrase "high crimes and misdemeanors. You are a lawyer, an author, a constitutional scholar, and a teacher. You have the skills and the knowledge to demystify that phrase in a minute -- in five seconds. You have the skills and the knowledge to lead a fight worth fighting. But you choose not to. Instead, you and most of the rest of your profession leave it to amateurs like us to plead with and beg our representatives to do the right thing.

# posted by

Thomas Nephew : 2:07 AM