Dictatorships seldom appear full-fledged but emerge
piecemeal. When Julius Caesar crossed the Rubicon with one Roman legion he broke
the tradition that protected the civilian government from victorious generals
and launched the transformation of the Roman Republic into the Roman Empire.
Fearing that Caesar would become a king, the Senate assassinated him. From the
civil wars that followed, Caesar's grandnephew, Octavian, emerged as the first
Roman emperor, Caesar Augustus.
Two thousand years later in Germany, Adolf Hitler's rise to dictator from
his appointment as chancellor was rapid. Hitler used the Reichstag fire to create
an atmosphere of crisis. Both the judicial and legislative branches of government
collapsed, and Hitler's decrees became law. The Decree for the Protection
of People and State (Feb. 28, 1933) suspended guarantees of personal liberty
and permitted arrest and incarceration without trial. The Enabling Act (March
23, 1933) transferred legislative power to Hitler, permitting him to decree
laws, laws moreover that "may deviate from the Constitution."
The dictatorship of the Roman emperors was not based on an ideology. The Nazis
had an ideology of sorts, but Hitler's dictatorship was largely personal
and agenda-based. The dictatorship that emerged from the Bolshevik Revolution
was based in ideology. Lenin declared that the Communist Party's dictatorship
over the Russian people rests "directly on force, not limited by anything,
not restricted by any laws, nor any absolute rules." Stalin's dictatorship
over the Communist Party was based on coercion alone, unrestrained by any limitations
In this first decade of the 21st century, the United States regards itself
as a land of democracy and civil liberty but, in fact, is an incipient dictatorship.
Ideology plays only a limited role in the emerging dictatorship. The demise
of American democracy is largely the result of historical developments.
Lincoln was the first American tyrant. Lincoln justified his tyranny in the
name of preserving the Union. His extralegal, extra-constitutional methods were
tolerated in order to suppress Northern opposition to Lincoln's war against
the Southern secession.
The first major lasting assault on the U.S. Constitution's separation of powers,
which is the basis for our political system, came with the response of the Roosevelt
administration to the crisis of the Great Depression. The New Deal resulted
in Congress delegating its legislative powers to the executive branch. Today
when Congress passes a statute, it is little more than an authorization for
an executive agency to make the law by writing the regulations that implement
Prior to the New Deal, legislation was tightly written to minimize any executive
branch interpretation. Only in this way can law be accountable to the people.
If the executive branch that enforces the law also writes the law, "all
legislative powers" are no longer vested in elected representatives in
Congress. The Constitution is violated, and the separation of powers is breached.
The principle that power delegated to Congress by the people cannot be delegated
by Congress to the executive branch is the mainstay of our political system.
Until President Roosevelt overturned this principle by threatening to pack the
Supreme Court, the executive branch had no role in interpreting the law. As
Justice John Marshall Harlan wrote: "That Congress cannot delegate legislative
power to the president is a principle universally recognized as vital to the
integrity and maintenance of the system of government ordained by the Constitution."
Despite seven decades of an imperial presidency that has risen from the New
Deal's breach of the separation of powers, Republican attorneys, who constitute
the membership of the quarter-century-old Federalist Society, the candidate
group for Republican nominees to federal judgeships, write tracts about the
Imperial Congress and the Imperial Judiciary that are briefs for concentrating
more power in the executive. Federalist Society members pretend that Congress
and the judiciary have stolen all the power and run away with it.
The Republican interest in strengthening executive power has its origin in
agenda frustration from the constraints placed on Republican administrations
by Democratic congresses. The thrust to enlarge the president's powers predates
the Bush administration but is being furthered to a dangerous extent during
Bush's second term. The confirmation of Bush's nominee, Samuel Alito, a member
of the Federalist Society, to the Supreme Court will provide five votes in favor
of enlarged presidential powers.
President Bush has used "signing statements" hundreds of times to
vitiate the meaning of statutes passed by Congress. In effect, Bush is vetoing
the bills he signs into law by asserting unilateral authority as commander in
chief to bypass or set aside the laws he signs. For example, Bush has asserted
that he has the power to ignore the McCain amendment against torture, to ignore
the law that requires a warrant to spy on Americans, to ignore the prohibition
against indefinite detention without charges or trial, and to ignore the Geneva
Conventions to which the U.S. is signatory.
In effect, Bush is asserting the powers that accrued to Hitler in 1933. His
Federalist Society apologists and Department of Justice appointees claim that
President Bush has the same power to interpret the Constitution as the Supreme
Court. An Alito Court is likely to agree with this false claim.
Bush Justice Department official and Berkeley law professor John Yoo argues
that no law can restrict the president in his role as commander in chief. Thus,
once the president is at war even a vague, open-ended "war on terror"
Bush's Justice Department says the president is free to undertake any
action in pursuit of war, including the torture of children and the indefinite
detention of American citizens.
The commander in chief role is probably sufficiently elastic to expand to any
crisis, whether real or fabricated. Thus has the U.S. arrived at the verge of
This development has little to do with Bush, who is unlikely to be aware that
the Constitution is experiencing its final rending on his watch. America's
descent into dictatorship is the result of historical developments and of old
political battles dating back to President Nixon being driven from office by
a Democratic Congress.
There is today no constitutional party. Both political parties, most constitutional
lawyers, and the bar associations are willing to set aside the Constitution
whenever it interferes with their agendas. Americans have forgotten the prerequisites
for freedom, and those pursuing power have forgotten what it means when it falls
into other hands. Americans are very close to losing their constitutional system
and civil liberties. It is paradoxical that American democracy is the likely
casualty of a "war on terror" that is being justified in the name
of the expansion of democracy.