Constitutional Dictatorship: Reading Group
Fall term, Block L
T 5:00 PM - 7:00 PM
Visiting Professor Sanford Levinson
1 classroom credit LAW-33599A
The very term "constitutional dictatorship" no doubt strikes many people as oxymoronic, since one purpose of constitutions is precisely to prohibit the kinds of arbitrary government that we identify with dictatorship. There is, however, a rich literature about the extent to which any well-conceived constitution should recognize the desirability, under certain conditions, of the kind of (relatively) unfettered discretion that we often associate with the term "dictator." The most important such book is surely Clinton Rossiter's Constitutional Dictatorship: Crisis Government in the Modern Democracies, originally published in 1948 and most recently republished in 2002. Rossiter begins his analysis by looking at the ancient Roman model of dictatorship and brings the story forward to discuss the responses to emergency situations in France, Germany, Great Britain, and the United States. As to the latter, he had no trouble labeling Abraham Lincoln a "constitutional dictator," and he used this as a term of commendation rather than critique. There were other discussions of what distinguished "constitutional dictatorships" from "totalitarian dictatorships" during the 1940s and '50s, though, for whatever reason, that strain of scholarship seemed to die out thereafter. September 11 and its aftermath, at both home and abroad, have generated a great deal of interest in the limits (or lack of same) on executive power to meet potential emergencies. There has been a concomitant revival of interest in the work of German (and Nazi) jurisprude Carl Schmitt, particularly his book Political Theology, inasmuch as he argues that "states of emergencies" (or, more precisely, "states of exception") put the very possibility of what might be termed standard-form liberal constitutionalism into doubt.
We will therefore read together both primary and secondary works dealing with the concept and actuality of ostensible "constitutional dictatorships" in an effort to decide whether the term is indeed necessarily oxymoronic with regard to the American constitutional order. The readings will most likely be taken from the following:
Clinton Rossiter, Constitutional Dictatorship
John Locke, Second Treatise on Government, chapters on "prerogative"
Selected numbers of The Federalist
Letter of Thomas Jefferson to John Colvin
Materials on the Lincoln presidency
Carl Schmitt, Political Theology
Selections from Korematsu, Youngstown Steel v. Sawyer (The Steel Seizure Case), and Hamdi
Portions of the so-called "torture memorandum" of the Office of Legal Counsel concerning presidential power under Article II
I anticipate that the readings will average approximately 75 pages per each bi-weekly session.