Constitutional Dictatorship: Its Dangers and Its Design

By Sanford Levinson & Jack M. Balkin. Full text here.

A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. Constitutional dictatorship, far from being a contradiction in terms, has been an important feature of republican governments since Roman times. This Article describes the basic idea of a constitutional dictatorship, and discusses those elements of constitutional dictatorship that already exist in the American constitutional system, particularly in the modern presidency.

The Roman dictatorship limited the time of the dictatorship and separated the institution that declared the emergency from the person who exercised power. The American pattern has been quite different. Generally speaking, the President announces the existence of a crisis or emergency, and, at the President’s request, Congress bestows new statutory grants of power. These new powers are usually never repealed and are banked away for future use, sometimes in very different contexts. The American pattern of constitutional dictatorship does not involve the executive claiming the right to transcend the law; instead Congress grants ever more practically unreviewable discretion to the executive.

A significant feature of American constitutionalism is the rise of “distributed dictatorships,” in which executive power is spread among a number of de facto dictators, each with its own special expertise. The modern administrative state increasingly spreads unreviewable power among a variety of different agencies, czars, and bureaucrats. The Federal Reserve’s response to the recent economic crisis and the Centers for Disease Control’s powers to impose quarantines are examples.

The Article concludes with some suggestions for counteracting the more dangerous tendencies in the American pattern of constitutional dictatorship. Although emergencies often cannot always be foreseen in advance, the structural features of emergency power must be designed in advance to preserve republican government.