Will a Domestic Crisis Transform Our Government?
Homeland Security
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Category: 2010, Authoritarianism
Mar, 24, 2010

Throughout the country the division is mounting and more and more are talking about the possibility of civil unrest, violence and a coming chaos. Many are frustrated with the flagrancy of corruption in the political establishment. Polls clearly indicate a division with a widening gap.

I thought it would be time to revisit an issue that I discussed during the Bush presidency:

How could the nation survive a domestic crisis and what powers does the president have to maintain order? The American President, should he need them, possesses awesome powers. Those powers potentially in effect create a “constitutional dictatorship.” Our system of government works best in times of peace, when there is debate, compromise, and deliberation in forming governing rules, regulations, and policies. It seems Congress has already decided that we are not at domestic peace. 

The history of democratic governments, from the ancient republics of Greece and Rome to the modern states that have replaced earlier totalitarian governments, show that governing by committees, or legislative bodies, never works in times of crisis. Our Founders were aware of this when they designed our system.

While our constitution contains no express provision for “emergency” or “crisis” situations, such a provision is not necessary. The U.S. Supreme Court made clear in Ex Parte Milligan, following the Civil War, that “the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.”

Past presidents by exercising their powers in time of emergency, have expanded their authority as necessary to meet emergencies they faced. They have, in essence, created the law in times of crisis, not always in the manner envisioned.

Lincoln launched the Civil War unilaterally, without Congressional action, following the secession of seven Southern states. Only later did he obtain Congressional approval. His critics called him a dictator.

The distinction between a “constitutional dictator” and a strong president is remarkably thin, if not non-existent because there are few checks on the Commander in Chief.

Constitutional dictatorship is a dangerous thing because once it is created it is difficult to terminate without the consent of the “dictator.”

By creating the USA PATRIOT Act Congress laid the groundwork for the American equivalent of a constitutional dictator in the White House if the President so chooses by declaring a national emergency and assuming such dictatorial powers.

The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared, “is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

It is, however, the President’s prerogative to determine that liberty give way to security in times of a national crisis by declaring internal danger sufficient to invoke dictatorial powers.

Of course, the very concept of a “dictatorship” has been offensive and inimical to the political thinking of most citizens of this country. The question is whether Americans could tolerate the undemocratic ways of a constitutional dictatorship if it is construed to be essential to the preservation of the state? 

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