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Constitutional Dictatorship - Crisis Government in the Modern Democracies Hardcover – November 4, 2008
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About the Author
Clinton Rossiter (1917-1970) Cornell, A.B. 1939, Princeton, Ph.D., 1942, held Cornell's John L. Senior Chair in Government and was the author of numerous books, including The Supreme Court and the Commander-in-Chief (1951); Conservatism in America (1955); The American Presidency (1956); Marxism: The View from America (1960); and The American Quest 1790-1860 (1971).
William J. Quirk is professor of law at the School of Law of the University of South Carolina. His earlier work on this subject appeared in Society.--This text refers to an out of print or unavailable edition of this title.
Top customer reviews
In this book, Rossiter tries to solve an age old question: how do republics, rooted in the idea of limited, representative government, react to crises of the moment when a response is demanded sooner than free debate can produce one? Rossiter's answer is that we have always turned to one form or another of executive power which operates outside of the normal restrictions of law. It is important to note that within Rossiter's mind, these steps outside the law are not a violation of it, but rather an essential guardian thereof. To him, it was important that we accept unanticipated crises will occur, and that any government that seeks to retain its republican form in the long-term must provide constitutional legitimacy to emergency uses of power so that they become a normal, regulated part of government.
To support his view, he provides five historical examples (one ancient, four modern): ancient Rome, Weimar Germany, France, Great Britain, and the Civil War. He paints with broad brushstrokes the historical background of each state he covers, but is not so short as to be curt. Turning first to Rossiter's brief chapter on Rome, he notes that they were the first people in recorded history to institute a formal office, the dictator, who could act with almost (an important qualifier) absolute authority. The only significant limitation was that his term of office could be for only six months. There were two main forms of dictatorship. There was the traditional Cincinnatus-style dictator who protected Rome from outside invaders. This manner of dictator could spend any funds granted to him by the Senate as he pleased, served as commander-in-chief of the armies, and was unaccountable after he left office. Then there was the less vital, but still rare, dictator who administered religious rites when no qualified figure was otherwise available. The office began to decline after Rome had completed conquering the Italian Peninsula, and after the expulsion of Hannibal, there was never again an important, constitutionally-limited dictator. The appellation given to Sulla and Caesar, while nominally the same office, was really that of a modern-style military strongman.
Following Rome, Rossiter moves on to the modern examples from Europe and the United States. Considering the relatively recent revival of republicanism, it is unsurprising all of Rossiter's examples besides Rome have occurred within the last two hundred years. His analysis of Weimar Germany is particularly interesting, and sheds light on a particularly neglected part of post-armistice history. With Germany in shambles after the Great War, legal drafters met in the small town of Weimar to craft a new constitution for the country. They borrowed from the old Reich's ideas on a "state of war" in which the executive could act with full authority to protect the function of government. In its final form, this idea became Article 48 of the new constitution. In this article, the president was authorized to act with broad authority, pursuant to consent of his cabinet, to stop any emergency deemed a threat to the state. Although one provision stated the president's power under Article 48 would be defined by supplementary legislation, none was ever produced. Faced with a looming depression and secession movements by numerous provinces, the presidents of Germany unsurprisingly invoked Article 48 on literally hundreds of occasions. What made this different from the Roman experience was that it was not used to solve solely military problems, but also economic turmoil. Unfortunately, because the German people gradually came to see Article 48 as a necessary and common part of their scheme of government, Rossiter suggests it might have blinded them to the nefarious intent of some of Hitler's actions until too late.
The next two sections cover France and then Great Britain. Unsurprisingly, a major focus in both are the periods leading up to, during, and after the Great War. Rossiter also, however, delves a bit further into the legal technicalities behind how each government tried to justify their actions. In the final chapter, Rossiter covers his home country, the United States. I personally found his discussion of the actions the Union government took during the Civil War to be among the most interesting. An interesting companion piece would have been to analyze the Confederates' response measures. The closest companion volume I can recommend would be Mark Neely's Southern Rights. Rossiter then moves on to discuss the measures taken during World War I, but also notes the relatively radical shift in the separation of powers that came with the New Deal. At the time, there was a strong debate over whether the administrative state was constitutional, but because FDR believed he was pursuing necessary measures, he was willing to take the risk of later censure. The last portion of this chapter covers World War II and, perhaps because he was able to witness it firsthand, this is where Rossiter is most critical. Although he offers a largely generous assessment of most political leaders up to this point, Rossiter is highly critical of the relocation of Japanese-Americans during World War II. To Rossiter, this went beyond an immediate emergency, and lacked a detailed justification protecting the other instances in his eyes. He suggests that while a relocation in the immediate aftermath of Pearl Harbor might have been justified, the wholesale relocation into the interior of the country, the delay in allowing their return after the threat of invasion had passed, and refusal of any other branch to speak out against the act were particularly disturbing.
Despite the abuses mentioned in each section, however, Rossiter ultimately felt in each republic was the authority for a constitutional dictator to act quickly to prevent its destruction. As Rossiter was well-aware, however, each action also sowed a precedent that could lead to its dissolution should a greedy individual gain power. Despite this warning, Rossiter felt there was no alternative but to recognize such an idea would have to remain part of government. He closes in part by saying: "From this day forward we must cease wasting our energies in discussing whether the government of the United States is to be powerful or not. It is going to be powerful or we are going to be obliterated. Our problem is to make that power effective and responsible, to make any future dictatorship a constitutional one. No sacrifice is too great for our democracy, least of all the temporary sacrifice of democracy itself."
In the sixty years since this book was originally published, the exact amount of authority with which the public believes a government can act has waxed and waned, but this underlying debate has never entirely dissipated. Although I do not know what the future of my country holds, I certainly hope that Mr. Rossiter is correct that the measures necessary to preserve its life will not kill what I love most about it.
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.