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Constitutional dictatorship: Refining the analysis

By Jack M. Balkin

One of the respondents to my previous post points out, altogether correctly, that George W. Bush isn't truly "unaccountable." It's possible, after all, that Congress could impeach him or that it would simply vote to cut off all funds for even one more day in Iraq. Putting to one side the fact that the latter action would be irresponsible in the extreme, any genuine analysis of the notion of the American "constitutional dictatorship" must include attention to the vital role that political parties play in our political system.

Imagine, for example,

that Ross Perot had been elected and then embarked on Bush's policy in Iraq. One wonders if he would have been successful, precisely because there would have been no institutionalized party backing the Texas maverick. Even if he could have initiated some activities using his constitutional commander-in-chief powers, one could well expect that members of both parties would have been eager to engage in oversight and, should he turn out to be so dangerously adventurist as George W. Bush has been, he might well have been impeached. Who, after all, would have had any interest in saving him? Indeed, the impeachment would dramatically demonstrate to Americans the dangers of deviating from the sacred two-party system and succumbing to the blandishments of an "independent."

But, of course, this is not remotely the case. Mr. Bush is the leader of a political party, and the members of that party have a strong interest to rally around him, just as Democrats rallied around the narcissistic Bill Clinton. To be sure, there is the counter-example of Richard Nixon, but that took a long time and required the fabled "smoking gun" regarding what everyone agreed was the clear violation of an important criminal law.

In any event, though my critic was right to chide me for possibly suggesting that we suffer under a simplistic kind of one-man dictatorship, I think the term "constitutional dictatorship" still has analytic bit when one plugs into the analysis the reality of the party system and the willingness of political parties to protect even the most discredited of their leaders. This isn't necessarily true of all party systems: After all, the Tories unceremoniously dumped Margaret Thatcher. But that is, of course, becasue they could also pick her successor without going to the public. As I've noted, perhaps tiresomely, we don't have that kind of system, and, as a practical matter, no political party, with the partial exception of the Republicans finally turning on Nixon, has been willing to use the powers that might be theoretically at their disposal to hold rogue presidents truly accountable.

Full post as published by Balkinization on March 21, 2008 (boomark / email).