Volume 94 - No. 6 Minnesota Law Review

Constitutional Dictatorship: Its Dangers and Its Design

A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. Constitutional dictatorship, far from being a contradiction in terms, has been an important feature of republican governments since Roman times. This Article describes the basic idea of a constitutional dictatorship, and discusses those elements of constitutional dictatorship that already exist in the American constitutional system, particularly in the modern presidency.

The Roman dictatorship limited the time of the dictatorship and separated the institution that declared the emergency from the person who exercised power. The American pattern has been quite different. Generally speaking, the President announces the existence of a crisis or emergency, and, at the President’s request, Congress bestows new statutory grants of power. These new powers are usually never repealed and are banked away for future use, sometimes in very different contexts. The American pattern of constitutional dictatorship does not involve the executive claiming the right to transcend the law; instead Congress grants ever more practically unreviewable discretion to the executive.

A significant feature of American constitutionalism is the rise of “distributed dictatorships,” in which executive power is spread among a number of de facto dictators, each with its own special expertise. The modern administrative state increasingly spreads unreviewable power among a variety of different agencies, czars, and bureaucrats. The Federal Reserve’s response to the recent economic crisis and the Centers for Disease Control’s powers to impose quarantines are examples.

The Article concludes with some suggestions for counteracting the more dangerous tendencies in the American pattern of constitutional dictatorship. Although emergencies often cannot always be foreseen in advance, the structural features of emergency power must be designed in advance to preserve republican government.

:: View PDF

De Novo

  • Dan’s Flaw

    DAN’S [F]LAW: STATUTORY FAILURE TO ENFORCE ETHICAL BEHAVIOR IN CLINICAL DRUG TRIALS Noah Lewellen* I. INTRODUCTION Paul, a sophomore at the University of Minnesota, bursts into a lecture hall, loudly claims to see monsters sitting in the seats, and offers his services in slaying them. The police are called, and Paul is restrained and delivered […]

  • Case Comment: Bhogaita v. Altamonte

    EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit.[1] Although the case presented many serious issues regarding the Fair Housing […]

  • Revisiting Water Bankruptcy

    REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself[1]—Governor Jerry Brown issued an unprecedented order to reduce potable urban water usage by twenty-five percent.[2] In […]