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Constitutional Dictatorship: Its Dangers and Its Design


Sanford Levinson


University of Texas Law School

Jack M. Balkin


Yale University - Law School

June 13, 2010

Minnesota Law Review, Vol. 94, p. 1789, 2010
Yale Law School, Public Law Working Paper No. 200
U of Texas Law, Public Law Research Paper No. 164

Abstract:     
Constitutional dictatorship, far from being a contradiction in terms, has been an important feature of republican governments since Roman times. This essay 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.

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.

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, the Congress generally 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 These new powers are usually never repealed and are banked away for future use, sometimes in very different contexts.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.

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

Number of Pages in PDF File: 79

Keywords: dictatorship, constitutionalism, emergency power, presidential power, executive power

JEL Classification: K10

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Date posted: November 19, 2009 ; Last revised: June 19, 2010

Suggested Citation

Levinson, Sanford and Balkin, Jack M., Constitutional Dictatorship: Its Dangers and Its Design (June 13, 2010). Minnesota Law Review, Vol. 94, p. 1789, 2010; Yale Law School, Public Law Working Paper No. 200; U of Texas Law, Public Law Research Paper No. 164. Available at SSRN: http://ssrn.com/abstract=1508666

Contact Information

Sanford V. Levinson
University of Texas Law School ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)
Jack M. Balkin (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)
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