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]