"Constitutional Dictatorship" and the Iron Cage of the U.S. Constitution

Sandy Levinson

I have repeatedly stated that the single most important book published in the last 70 years on the American political system is Clinton Rossiter's 1948 Constitutional Dictatorship.   He argued, among other things, that not only is "constitutional dictatorship" a recognizable part of many legal systems, from ancient Rome to modern Germany, France, the UK, and the US., but also that the US has a particularly deficient form, in part derived from the fact that the President is significantly unrestrained in declaring the existence of "emergencies" that license expansions of executive power.  As Carl Schmitt, one of the most insightful, albeit dreadful, constitutional analysts notably put it, "sovereign is he who can declare the state of exception." We see this in spades with the assassination, on Donald Trump's orders, of Suliemani.  Going back to Biblical texts, the ultimate manifestation of sovereignty  is the ability to kill for reasons known only to the killer, the most important of whom is designated as God.  See, e.g., the Abraham-Isaac story, the book of Job, or, indeed, the central tenet of Christianity in the blood sacrifice of an innocent Jesus.  Suliemani was, of course, no innocent, but why exactly, should that be treated as dispositive?

There was, in fact, a vigorous discussion in the '50s and early '60s about the concept of "constitutional dictatorship" (in contrast to "totalitarian dictatorship"), but that discussion basically died in the 1960s, perhaps because Americans were much too mindlessly patriotic to confront both the reality and the deficiencies of our "exceptional" form of the practice.  I think this was best illustrated by the wide berth given  JFK and his ad hoc "EXCOMM  to risk nuclear war to react against the reckless placement of Soviet missiles in Cuba that, at the same time, were defined by Robert McNamara, the Secretary of Defense, as comprising far more a "political" than a true "national security" threat inasmuch as the US had a secure second-strike capacity to retaliate against any Soviet attack on the US.  JFK was, of course, only one of the many US Presidents, from both political parties, who have been more than willing to extend presidential power in a way that does create a de facto "dictatorship" with regard to fundamental issues of war and peace, life and death.

One assurance, offered especially by Democrats during the Obama administration, when targetted killings (i.e., assassinations) became an almost routine part of American military operations, was that one could trust both the character of the President (in this case Obama, of course) and a working set of institutions, ranging from the National Security Council to the Department of Defense, not to mention genunely trustworthy lawyers in OLC.  An unusually important contribution to the discussion is available at the New York Times by Jonathan Stevenson, "American Foreign Policy is Broken.  Suleimani's Killing Proves It."  The most fundamental point is that we have no reason whatsoever--none, period--to trust anything that Donald Trump says or does, especially because there s no evidence at all that he in fact consulted with experts who might have offered relevant advice.  And it is almost laughable to believe that anything that Secretary of State Pompeo says,  He has completely disgraced his genuine attainment of having graduated first in his class from West Point, which, to its credit, has an honor code that dictates that cadets will not only not lie themselves, but will not tolerate lying by others.  Pompeo has no regard--none--for the truth, as proved by his faithful service of the pathological liar who occupies the Oval Office.  He apparently told Jack Tapper yesterday that the term "imminent" had no real meaning, i.e., it simply did not matter if there was any evidence at all that an attack on Americans was likely to occur in the immediate future.  Instead--and one might say that the Obama Administration was less than scrupulous in defining imminence as well-- we've achieved a Humpty-dumpty world where words man whatever our own Dear Leader, aided and abetted by compliant lawyers, states they mean. 

Many of us tolerated Obama because he is in fact a man of fine character and he did take advantage of the administrative apparatus that can rein in an impetuous ignorant narcissist who manages to occupy the Oval Office.  Perhaps we were wrong to do so, just as I now believe "we" were wrong to support Bill Clinton's acquittal for his clear crime of perjury and recruitment of his cabinet and other close associates to cover for him in what he knew (but they did not) were lies about his relationship with Ms. Lewinsky (and, one suspects, other of the complainants who were dismissed at the time).  But there is no reason at all to tolerate a menace like Donald Trump.

If we had a truly defensible political system, there would be wide agreement that he should be fired via a vote of no confidence for his completely reckless act in almost whimsically engaging in a full-scale act of war against a country that does not demonstrably affect America's homeland security (which, at least, was the assertion with Cuba in 1962).  But, of course, we don't live in a truly defensible political system, because our truly defective Constitution offers only the almost completely useless Impeachment Clause or the unusable 25th Amendment (which ought to be invoked, but will not be, of course).  "We" seem to have little trouble condemning George III not only as a "tyrant," but also as "mad," which gains credibility inasmuch as the American secession could easily have been prevented had the British offered a more rational policy than the one they adopted, presumably with George's encouragement, following the Boston Tea Party.  But I suspect that George III was not demonstrably more mentally defective than our President, who has powers that George could only dream of.

Because it is too frightening to admit that we are at the collective mercy of a near-sociopath who is fully capable of generating a catastrophic war in Iran (and, along the way, demonstrating his propensity toward war criminality even by threatening to destroy cultural sites), we must pretend that things are more-or-less normal, that high officials are trustworthy and that the GOP is willing to demand any accountability at all from its fuhrer.  Even though Trump is no Hitler, I do think that McConnell and his crew are in fact worse than Fritz van Papen was in 1933.  As of 1933, one might, perhaps, believe that Hitler was a mere clown who cold be tamed by von Papen and his aristocratic friends.  Perhaps that was a credible view of Trump in 2016.  But we know now, beyond reasonable doubt, that he is unfit, under any conceivable criteria linked to preserving a "republican form of government"," to be President of the United States.  He not only disgraces the country every single day; he also, we should now realize, is the single greatest threat to peace in the world today. 

I used to compare us to battered spouses who believed that there was no alternative to remaining to the batterer, because we live under a Constitution that in effect leaves us helpless when faced with our presidential batterer.  But, in the case of some of the GOP, perhaps it's really the Stockholm Syndrome, that they' have grown really to esteem what they earlier denounced., I have grown semi-relaxed about the US and new war inasmuch as I believed that Donald Trump, as a real estate developer, really wan't a war-mongerer (unlike, say, John Bolton, who many, in this crazy world, turn out to be our savior).  This was illustrated by his desire in fact to withdraw from the wars we're currently conducting.  But he is a delusional madman who is fully capable of getting us into a catastrophic situation (not to mention his idiocy with regard to global warming, which threatens the lives our our children and grandchildren more directly).  As I've said before, to no effect, it is the Constitution itself , in important respects, that is the crisis because it leaves us without a feasible means of getting rid of Donald Trump before it will prove too late.
Posted 6:41 PM by Sandy Levinson [link]