“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....”[43]
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,[44] and he places great faith in the effectiveness of congressional investigating committees.[45] 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.”[46]
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[47] 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.[48] 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.”[49] 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.[50] “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.”[51]
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.[52] 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;[53] 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.[54] 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.
Chapter III
THE CONCEPT OF EMERGENCY IN AMERICAN LEGISLATION
Emergency, as a generic term applicable to individual and group situations as well as to the state, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. (A standard dictionary definition mentions the element of surprise, which may be present but is by no means necessarily integral to the existence of an emergency. An intense threat to life or well-being is not necessarily lessened by anticipation.) An emergency requires extraordinary and prompt corrective action. A typical British recital of the proper objectives of emergency action inferrentially includes “... securing the public safety, the defense of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and ... maintaining supplies and services essential to the life of the community.”[55] Public disorder, war and threat of invasion, interruption of the production or flow of essential supplies and services—any of these may intensify danger to life or well-being beyond acceptable limits. A similarly broad definition is contained in the American Labor-Management Relations Act of 1947, the national emergency section of which permits the President to curb strike action which “if permitted to occur or to continue, [would] imperil the national health or safety.”[56]