Balkinization: More on "constitutional dictatorship"

More on "constitutional dictatorship"

Sandy Levinson

A respondent to my previous post makes the standard confusion between "constitutional dictators" and standard-form models of dictatorship like Hitler, Mussolini, etc. To be sure, there is a literature, going back to ancient times, that argues that all dictators, even if picked in a process like that of ancient Rome, turn into tyrants. But there's also an important literature, the most important exemplar being Machiavelli, that defends the Roman dictatorship as a model for other countries. The McCormick essay that I mentioned in the previous post makes an extraordinarily important point that the Roman procedure was one in which the person selecting the dictator had to pick someone else, who could serve only a maximum of six months. This meant, among other things, that the invocation of an emergency could not particularly serve the crass political interest of the invoker, since he could not become the dictator himself. One problem with the American form of government is that there is a great incentive for presidents to proclaim the existence of emergencies that will either provide them extraordinary powers or otherwise serve their electoral advantage. This has been glaringly obvious in the Bush Administration, which won its second term only by playing the emergency card, but there is no reason to believe that future presidents, seeing how well it worked for Bush, won't play the same card.

Imagine a system where we relied on a "counsel of elders," consisting, say, of all former presidents, retired justices of the Supreme Court, etc., to declare the existence of a "state of emergency" and, in addition, to name the person (who could not be a sitting president or a potential candidate for the presidency in the future) who would exercise the emergency powers. There is, no doubt, much to be said against this idea, but it responds to a real problem that the Romans (and Clinton Rossiter) recognized and that we do not, inasmuch as we believe that "dictators" are are necessarily recognizable thugs who seized power illegally and not, under some circumstances, our own presidents. Anyone designing a modern constitution is well aware of the potential for emergencies and addresses the issue in the text of the Constitution. This is true of, among others, the French, German, South African, and Indian constitutions, for starters. For better or worse, our framers did not, save for the very limited and often irrelevant power to suspend habeas corpus (irrelevant because, for example, it has nothing to do with responding to economic crises a la Ben Bernanke and the Bear Stearns bailout), but that has not eliminated the existence of emergencies or very dicey behavior by presidents (including some we classify as "great") in responding to them. Even if, or especially if, we think that Machavelli and Rossiter were simply wrong in their plaudits for the Roman dictatorship, then we should have a serious discussion about the "dictatorial" features of our own system.

Posted 8:43 PM by Sandy Levinson [link]

Comments:

Sandy:

Can you develop your argument further?

Specifically, is there any plenary executive power that you do not consider "dictatorial?"

If so, where do you draw the line between dictatorial and non-dictatorial plenary powers exercised by an elected executive?

Thanks in advance.

# posted by

Bart DePalma : 9:46 PM

Bart,

You might try considering what the words mean before you ask such a silly question. It's like asking "are there any negative positive numbers?" or "are there any mamillian insects?"

# posted by

Charles Gittings : 12:43 AM

This comment has been removed by the author.

# posted by

Charles Gittings : 12:45 AM

I assume you were referring to my post, but you don't elaborate on what you consider a constitutional 'dictator', so I'm not sure the confusion is mine and not yours. I still think your use of the word dictator is just designed to inflame, so that you can set up another argument for amending the constitution. Yet your proposal of a counsel of elders or a privy counsel or whatever you want to call it is so far out of whack with a popularly elected sovereign that it is hard to take seriously.

Ultimately, I think people need to recognize that any system of government is going to place power in the hands of people that can abuse it. That is true as much of the Congress and the Supreme Court as the president (though the nature of that power is different in each case). This was pointed out by Scalia in Morrison:

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U.S. 200, 211 -217 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. . . . The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.S. 303 (1946); and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel.

You can create new checks and balances, I suppose, but not for every eventuality. The solution to this is not to continually amend the constitution to fill in every imagined scenario in which it may not provide an answer, but to rely on good faith and the checks and balances that are already there for when good faith does not do the trick.

# posted by

Zachary : 4:50 AM

Zachary: "...a popularly elected sovereign...".

I thought that in a democracy only the people are sovereign.

It's an interesting Freudian slip that reveals how deeply neo-monarchism has bitten into American conservatives.

# posted by

James Wimberley : 6:12 AM

Roman history also provides the great example of Fabius Cunctator, elected dictator in 221 BC after the disastrous defeat by Hannibal at Lake Trasimene. Fabius' main contribution was to resist the gung-ho tendency of the Romans, as of Americans, to charge forward and wage battle: he played for time with a purely defensive or containment strategy, figuring that Hannibal's forces, far from his base, would gradually ebb away. The gung-ho party came back to power and sure enough lost again, at Cannae. After that the Romans stuck to Fabius' strategy, generally under normal consular leadership.

The dictator you want is the coolest head, not the bravest warrior. Didn't Kennan say that containment would be psychologically difficult for Americans?

# posted by

James Wimberley : 6:27 AM

Considering the circumstances under which old people retire from politics or the bench today, do we really want that dictator chosen by a panel of people chosen for their senility?

# posted by

Brett : 7:25 AM

Specifically, is there any plenary executive power that you do not consider "dictatorial?"

Despite the claims of presidents and boosters of presidential power back to Hamilton, there is no such thing as a legitimate "plenary" executive power. (There are certain plenary powers given to the President, such as the pardon power, but they are not executive in nature.)

An executive power is a power to EXECUTE the laws. That's what the word means. Thus, executive power is ALWAYS subject by the limitations imposed by the legislature. "Plenary executive power" is a contradiction in terms.

# posted by

Dilan : 4:56 PM