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Constitutional Dictatorship: Crisis Government in the Modern Democracies

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Following the terror attacks of September 11, it seemed only a matter of time until Clinton Rossiter's classic comparative study of emergency powers, Constitutional Dictatorship (1948), would regain prominence in the United States. Rossiter's book a time the best historical resource on emergency powers and despite a flood of commentaries remains the best. Even in the months following the attacks, after a short season of citation by commentators across the American ideological spectrum, bandied about as a guide to crisis the book was soon reissued with a new introduction and a provocative new dust-jacket depicting the burning remnants of the World Trade Center set against an image of the U.S. Constitution, defacing the inscription "We the People." Rossiter's warning that "all uses of emergency powers and all readjustments in the organization of the government" should be "in pursuit of constitutional or legal requirements" resonates today in the open-ended "War on Terror." Indeed, considering the frequency of the exercise of emergency powers around the world, Rossiter's book has remained relevant in the half century since it was first published. Its pioneering methodology of comparative constitutionalism as a framework for studying emergency governance was actually well ahead of its time. The examples Rossiter drew upon have become the classic case studies: the Roman Republic and four modern democracies. Among other things, Rossiter's work is a classic defense of domestic formalism, drawing more often than not on the Republican tradition.

However, in other ways, Constitutional Dictatorship whose first edition put its cogent arguments to rest in 1948 reappears today as an intellectual Rip Van Winkle; the world it awakes in today would scarcely be recognizable to the author. COntinuous with Rossiter's republican ethic that law provides particular forms of agonism to slow down governments so they can and attend to a plurality of interests, a rigorous sequel -and not simply a repackaging of Rossiter's arguments-- would also have to grapple with new locations of power and governance, in particular a host of international institutions that interact with national governments in situations of national emergency.
These would include treaty regimes concerning the law of war and human rights law. Still, Rossiter's Constitutional Dictatorship is the most sophisticated account of emergency governments and self-regulatory emergency governance that we have in the period before the United Nations system and modern international law made its presence felt. As such, it provides a snapshot of how it was possible to conceive of emergency governance in this post-Westphalian/ pre- San Franciscan international order.