Chapter Ii the Concept of Emergency in Democratic Political Thought

When President Eisenhower on June 16, 1955 suspended the privilege of the writ of habeas corpus and declared a nationwide state of mock martial law, in response to simulated A-bomb and H-bomb attacks taking a toll of some 14 million civilian casualties, he acted on the premise that the ordinary processes of democratic and constitutional government do not suffice to protect the state in time of emergency and must surrender to a modified authoritarian regime. This premise is deeply embedded in the teachings of democratic political theory, which in its traditional and contemporary expression have counseled the need to abandon the processes of democratic government as the first essential response to emergency conditions.

Thus, ironically, the Western democracies which today approach the close of three decades of economic and military emergency, and turn their faces to additional decades in the shadow-land between peace and war, are offered a guiding theory which regards emergency governance as an aberration, supplanting the relationships between the various branches of government, and between rulers and ruled which prevail in “normal” times. In theory the struggle to preserve limited and popularly responsible government has already been lost, for this is a luxury we are told we cannot afford.

In the United States we have been especially prone to accept the alleged need for transition from responsible to authoritarian government in time of emergency, for we have on the one hand accepted an interpretation of the Constitution whereunder the rigid restraints imposed thereby on governmental power are susceptible of contradiction in time of emergency, and on the other hand we have with considerable complacence assigned to the Supreme Court the function of protecting the essentials of constitutionalism and democracy through periods of emergency. These two attitudes combine to enhance the sense of need and lull the fear of supposedly temporary reversions to authoritarian government.

In the belief that it is increasingly essential that emergency action be sustained by a workable and empirically-based theory of democratic emergency governance, the authors have undertaken, in the present study, to survey the treatment of emergency by democratic political theorists; to review the work of the Supreme Court in assessing the validity of governmental exercises of emergency powers (placing special emphasis upon the implications of the 1952 “Steel Seizure” cases); and, in conclusion, to submit tentatively an approach to emergency which they consider related to the needs of today and the realities of recent experience.

Democratic political theorists traditionally have assumed the need in time of emergency to subvert the governmental processes prescribed for peacetime and to rely upon a generically different method of government, frequently designated “constitutional dictatorship.” Many factors contribute to this tendency.

First, it must be recognized that a theory of democratic government so comprehensive as to traverse every vicissitude which might confront it cannot reasonably be demanded of political philosophers.

Second, a certain amount of inertia is inevitable in any phase of man’s endeavors. Thus it is not surprising that political theorists to date have picked up the traditional interpretation of emergency in terms of the Roman dictatorship and fitted it to their schemes of constitutional government. It is a safely ambiguous doctrine with the respectability of age. It invests an aspect of the experience of constitutional democracies, about which very little in the way of cumulative knowledge has been attained, with an aura of reassuring and doctrinaire certainty.

A third factor influencing the casual reliance of democratic theorists on emergency dictatorship is the tendency to polarize the concept of “limited” government and the supposed need for “unlimited” emergency action. This is related to the tendency to exaggerate substantively limited (enumerated) powers, and compartmentalized powers as integral elements in the concept of constitutionalism. In positing rigidly circumscribed and divided governmental powers, one posits a need contingent upon emergency to transcend such limitations. The doctrine of constitutional dictatorship fulfills this need.

DEMOCRATIC POLITICAL THEORISTS

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law set down by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations the Crown retained a prerogative “power to act according to discretion for the public good, without the prescription of the law and sometimes even against it.” The prerogative “can be nothing but the people’s permitting their rulers to do several things of their own free choice where the law is silent, and sometimes too against the direct letter of the law, for the public good and their acquiescing in it when so done.”

Properly the prerogative was exercisable only for the public good. But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. When one government has utilized prerogative powers for the public good, a successor may retain the habit or resort to such powers, utilizing them for a less worthy purpose. Who shall judge the need for resorting to the prerogative, and how may its abuse be avoided? Here Locke, too, readily admits defeat, suggesting that “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.”

Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency:

“The inflexibility of the laws, which prevents them from adapting themselves to circumstances, may, in certain cases, render them disastrous, and make them bring about, at a time of crisis, the ruin of the State....

“It is wrong therefore to wish to make political institutions so strong as to render it impossible to suspend their operation. Even Sparta allowed its laws to lapse.

“... If ... the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a supreme ruler, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it is clear that the people’s first intention is that the State shall not perish. Thus the suspension of the legislative authority is in no sense its abolition; the magistrate who silences it cannot make it speak; he dominates it, but cannot represent it. He can do anything, except make laws.”

Rousseau did not fear the abuse of the emergency dictatorship or “supreme magistracy” as he termed it. It would more likely be cheapened by “indiscreet use.”

He would rely upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship:

“However this important trust be conferred, it is important that its duration should be fixed at a very brief period, incapable of being ever prolonged. In the crises which lead to its adoption, the State is either soon lost, or soon saved; and, the present need passed, the dictatorship becomes either tyrannical or idle. At Rome, where dictators held office for six months only, most of them abdicated before their time was up. If their term had been longer, they might well have tried to prolong it still further, as the decemvirs did when chosen for a year. The dictator had only time to provide against the need that had caused him to be chosen; he had none to think of further projects.”

Rousseau was unwilling to rely upon an “appeal to Heaven.”

John Stuart Mill concluded his ardent defense of representative government with a shattering aside: “I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.” This is not a loose usage of the term “dictatorship,” but a forthright support of a grant of “absolute power” to the dictator.

Just as in political theory the nineteenth century liberals neglected adequately to provide for the problems which war creates, so also in their economic theory they ignored the dislocations of a war period. In his study of war in the nineteenth century, Edmund Silberner has shown how the liberals’ repugnance to the destructiveness of war, their conviction of its immorality and stupidity, coupled with their faith that the economic and cultural bonds which would be created among nations by extensive free trade would prevent future wars, caused them to neglect adequate theoretical treatment of the problem of war in their economic thought. Silberner points out, for example, that in his chief work, Elements of Political Economy (1821), James Mill virtually does not deal at all with war. And Mill’s distinguished son is brief on the subject of war. John Stuart Mill, according to Silberner’s interpretation, seemed to admit that virtually everything that can be said on this theme had already been expressed before him.

Thus do democratic political theorists tacitly admit the existence of a fatal defect in any system of constitutional democracy: Its processes are inadequate to confront and overcome emergency.

MACHIAVELLI

Machiavelli’s view of emergency powers as one element in the whole scheme of limited government furnishes an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory:

“Now in a well-ordered republic it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under that pretext for evil purposes. Thus no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency, and fixed rules for applying it.”

Machiavelli attempted, perhaps without complete success, but with greater caution than the later theorists, to design a system of constitutionalized emergency powers.

The incumbent executive authority, on finding that an emergency existed, could appoint a temporary “dictator” on the Roman model. The constitution was not suspended, and the emergency executive did not enjoy absolute power. His narrow function was to cope with the emergency. He operated under the surveillance of the regularly constituted legislators and government officials. A key element of Machiavelli’s scheme was a short term of office--“and I call a year or more a long time.”

Thus Machiavelli--in contrast to Locke, Rousseau and Mill--sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints.

CONTEMPORARY THEORISTS

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship. Criticism of their schemes for emergency governance is made difficult by the ambiguities latent in the terminology they adopt. An effort is made below to distinguish between those who mean dictatorship when they say dictatorship, and those who say dictatorship when they mean to refer to any effort by constitutional government to respond adequately to emergency conditions. However idiosyncratic the individual definitions of dictatorship, the theories of constitutional dictatorship explicitly or implicitly posit a transition in time of emergency from the processes of constitutionalism to those of an outright or slightly modified authoritarian system.

Frederick M. Watkins, who is responsible for the classic study of the Weimar experience with emergency powers, appears to have based his general discussion of emergency powers upon a priori reasoning rather than upon empirical research. Provided it “serves to protect established institutions from the danger of permanent injury in a period of temporary emergency, and is followed by a prompt return to the previous forms of political life,” Watkins can see “no reason why absolutism should not be used as a means for the defense of liberal institutions.” He recognized the two key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive while at the same time “imposing limitations upon that power.” He rejects legislative checks upon the exercise of executive emergency powers as an effective method of imposing such limitations, for “it is clearly unrealistic to rely on a government-controlled majority in the legislature to exercise effective supervision over that same government in its use of emergency powers.” On the other hand, judicial review of executive emergency action on its merits is regarded with admiration tempered only by regret at the delay inherent in judicial proceedings.

Watkins places his real faith in a scheme of “constitutional dictatorship.” These are the conditions of success of such a dictatorship: “The period of dictatorship must be relatively short.... Dictatorship should always be strictly legitimate in character.... Final authority to determine the need for dictatorship in any given case must never rest with the dictator himself....” The objective of such an emergency dictatorship should be “strict political conservatism.”

“Radical social and economic measures may, of course, be necessary as a means of preventing political change.... Boldly inventive as it may be in other directions, however, a truly constitutional dictatorship must always aim at the maintenance of an existing status quo in the field of constitutional law. Deviations from the established norms of political action may be necessary for the time being. The function of a truly constitutional dictatorship is to provide such deviations and at the same time to make sure that they do not go any further than is actually necessary under the circumstances.”

Carl J. Friedrich casts his analysis in terms similar to those of Watkins. It is a problem of concentrating power--in a government where power has consciously been divided--“to cope with ... situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end.” Professor Friedrich, too, offers criteria for judging the adequacy of any scheme of emergency powers. The emergency executive (“dictator”) must be appointed by constitutional means--i.e., he must be legitimate; he should not himself enjoy power to determine the existence of an emergency (and here, strangely enough, he finds the United States and Great Britain conforming to the criterion); emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order.

Recognizing that “there are no ultimate institutional safeguards available for insuring that emergency powers be used for the purpose of preserving the constitution” excepting “the people’s own determination to see them so used,” Friedrich nonetheless sees some indefinite but influential role which the courts, even though “helpless in the face of a real emergency,” may play to restrict the use of emergency powers to legitimate goals. They may “act as a sort of keeper of the President’s and the people’s conscience.”

Clinton L. Rossiter, after surveying the recent history of the employment of emergency powers in Great Britain, France, Weimar Germany, and the United States, reverts to a description of a scheme of “constitutional dictatorship” as solution to the vexing problems presented by emergency. Like Watkins and Friedrich, he is concerned to state, a priori, the conditions of success of the “constitutional dictatorship.”

“1. No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the state and its constitutional order....

“2. ... the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator....”

“3. No government should initiate a constitutional dictatorship without making specific provision for its termination....

“4. ... all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements....

“5. ... no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis....

“6. The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect....

“7. The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order....

“8. Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship....

“9. The decision to terminate a constitutional dictatorship, like the decision to institute one, should never be in the hands of the man or men who constitute the dictator....

“10. No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted....

“11. ... the termination of the crisis must be followed by as complete a return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship....”

Rossiter accords to the legislature (in the case of the United States, at any rate) a far greater role in the oversight of executive exercise of emergency powers than does Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating committees. In this work he offers no clear statement of the proposed relationship of the judiciary to his scheme of “constitutional dictatorship.” In a subsequent study, he concluded on the basis of a critical review of the Supreme Court that it was impotent “as overseer and interpreter of the war powers.”

CONTEMPORARY THEORIES IN THE LIGHT OF RECENT EXPERIENCE.

The suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory, or the experience of Great Britain or the United States in this century.

To appraise emergency powers--in spite of all experience to the contrary--in terms of the Procrustean mold of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term “dictator” is used in its normal sense (as applied to recent authoritarian rulers) or is employed as Friedrich makes explicit and Rossiter implies, to embrace all chief executives administering emergency powers. However used, “constitutional dictatorship” cannot be divorced from the implication of suspension of the processes of constitutionalism. Suspension is required because constitutionalism is viewed as a system imposing and providing inflexible safeguards against evasion of these limitations.

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate limitation upon the substantive powers of government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the meaning of constitutionalism he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that “the really effective checks on despotism have consisted not in the weakening of government, but rather in the limiting of it; between which there is a great and very significant difference.” In associating constitutionalism with “limited” as distinguished from “weak” government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. “The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.”

If such is the basic nature of constitutionalism, it does not wrap government in the steel bonds of a series of substantive limitations, or compartmentalize power in discrete units. The true nature of the issue which emergency presents for constitutional governments may then be recognized: It is the two-pronged problem of determining the extent to which the objectives of human action shall be socially defined and achieved or self-determined by the individual or group; and, correlatively, that of balancing, through adequate legislative, administrative and judicial checks, the increased discretionary powers of the executive which accompany expanded governmental functions. It is a matter of historical fact that modern constitutional democracies have not, upon the rise of emergency conditions, found it necessary to suspend constitutional processes, or to resort to the schemes for organization of power hypothesized by those who hitherto have written on the subject.

What the British, particularly, have come to recognize in the course of the last five decades is that emergency governance is one form of an acute and continuing problem in modern constitutional democracies: that of allotting increasing areas of discretionary powers to the executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. In time of emergency, governmental action may vary in breadth and intensity from more normal times, yet it need not be less constitutional. In time of war as in peace government according to the orderly procedure of the law, and government responsible to the governed, has proven its ability to meet the needs imposed by the accelerated tempo and the growing complexity of the twentieth century.