More on "constitutional dictatorship"

Sandy Levinson

I have earlier noted that Clinton Rossiter wrote a superb, even if disquieting, book titled Constitutional Dictatorship, very much still in print. I was also interested to discover that Carl J. Friedrich, Harvard's senior political theorist in the 1950s and '60s (indeed, I took a course from him my first year in graduate school) included a chapter on "Constitutional Dictatorship and Emergency Powers" in his widely used textbook, Constitutional Government and Democracy: Theory and Practicein Europe and America. My point is that there was once a time, even within my own lifetime, when serious political scientists believed that it was as important to analyze the concepts, behaviors, and institutions linked with "constitutional dictatorship" as, say, to discuss the concepts, behaviors, and instituitons of "totalitarianism" (see, e.g., Hannah Arendt) or of "authoritarianism" (see, e.g., Jeanne Kirkpatrick, who won her job at the UN precisely by virtue of distinguishing "authoritarian" regimes from "totalitarian" ones). There is very little such discussion going on today, Perhaps this is because some of us trying to evoke the notion are (rightly) accused of being rabidly anti-Bush, but I think it's more complicated--and ominous--than that.

Both parties are now committed to "presidentialism," especially with regard to foreign and military policy, even if they have different visions of what they would have the President do. (I wonder how many political liberals are having second thoughts about Jimmy Carter's unilateral abrogation of our treaty with Taiwan, let alone Bill Clinton's unilateral warmaking in Serbia.) Only Ron Paul among the Republican candidates has any respect for what used to be traditional conservative "Whiggism" re the powers of the president relative to Congress. Rudolph Giuliani, on the other hand, is basically an out-and-out authoritarian in his conception of presidential power (which he calls "leadership"). And I really doubt that Hillary Clinton has a modest conception of presidential power with regard to foreign and military policy.

As to Makasey: Jeb Rubinfeld quotes a passage from his testimony suggesting that "what goes outside the statute nonetheless lies within the president's authority to defend the country." This, of course, brings up the primary question: must a conscientious president ever conclude that something important, perhaps even "necessary" "to defend the country" would nevertheless be unconstitutional. Or is it just the case that whatever the President believes is, what, "useful," "important," ""necessary," "absolutely necessary," to "defend the country" is, by virtue of that belief, constitutional? In such case, should we amend the oath of office to say that "I will always do whatever I believe necessary to defend the country," or is Mike Paulsen correct that this is what the oath, correctly interpreted, already means? I agree with Jed that this is a discussion very much worth having, beginning with the would-be Attorney General (and close friend of Rudy Giuliani).
Posted 7:09 PM by Sandy Levinson [link]