The incumbent executive authority, on finding that an emergency existed, could appoint a temporary “dictator”[25] 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.[26] 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 [27]
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,[28] appears to have based his general discussion of emergency powers upon a priori reasoning rather than upon empirical research.[29] 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.”[30] 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.”[31] 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.”[32] 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.[33]
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....”[34] 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.”[35]
Carl J. Friedrich casts his analysis in terms similar to those of Watkins.[36] 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.[37] 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.”[38] 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.[39]
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.”[40]
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.[41] Like Watkins and Friedrich, he is concerned to state, a priori, the conditions of success of the “constitutional dictatorship.”