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 or inhibitions.
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 extra-legal, 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 US 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 it.
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 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 US 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.
This is the great issue that is before the country. But it is pushed into the background by political battles over abortion and homosexual rights. Many people fighting to strengthen the executive think they are fighting against legitimizing sodomy and murder in the womb. They are unaware that the real issue is that America is on the verge of elevating its president above the law.
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 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 US arrived at the verge of dictatorship.
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.
Dr. Roberts [send him mail] is John M. Olin Fellow at the Institute for Political Economy and Research Fellow at the Independent Institute. He is a former associate editor of the Wall Street Journal, former contributing editor for National Review, and a former assistant secretary of the U.S. Treasury. He is the co-author of The Tyranny of Good Intentions.