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.[12] 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.”[13] 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.”[14]
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.[15] 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.”[16]
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.”[17]
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.”[18]