Constitutional dictatorship is a dangerous thing. A declaration of martial law or the passage of an enabling act is a step which must always be feared and sometimes bitterly resisted, for it is at once an admission of the incapacity of democratic institutions to defend the order within which they function and a too conscious employment of powers and methods long ago outlawed as destructive of constitutional government. . .Id. at 294-296. As Quirk notes in his "Introduction to the Transaction Edition", Rossiter's book remains important and timely in this age of America's war on terror. What he does not say, because Trump's election was still fourteen years in the future, is that we should be especially concerned that persons with autocratic tendencies (e.g., Trump) could use the crisis/emergency of the war on terror to assert dictatorial powers. Trump seems to have a less than natural love for most dictators and autocrats.
The most obvious danger of constitutional dictatorship, or of any of its institutions, is the unpleasant possibility that such dictatorship will abandon its qualifying adjective and become permanent and unconstitutional. . .
The institutions of constitutional dictatorship are not only uniquely available as instruments for a coup d'etat; they are also ideal for the purposes of reactionary forces not so much interested in subverting the constitutional order as they are in thwarting all legal and electoral attempts to dislodge them from their entrenched positions of power. . .
A third risk inherent in the constitutional employment of dictatorial institutions is the simple fact that changes less than revolutionary, but nonetheless changes, will be worked in the permanent structure of government and society. No constitutional government ever passed through a period in which emergency powers were used without undergoing some figure of permanent alteration, always in the direction of an aggrandizement of the power of the state. . .
A further danger to democracy is inherent in the implicit and even positive acknowledgment that the regular institutions of constitutional government do not have the virility to protect the state from the dangers of war, rebellion, or economic collapse. . .
Finally, it is obvious that individual abuses of public power are more likely to occur under conditions of crisis and in the prosecution of extraordinary duties than in normal times and in pursuit of normal duties. . .
Also, Quirk's comment about legal education is worth noting.
American law schools, however, teach today, as they have taught generations of lawyers, that the U.S. Constitution is never suspended; it is at all times in full force and effect. The law schools are correct that our Constitution--unlike the Weimar Constitution--makes no express provision for its suspension. Supreme Court doctrine, which is what the law schools teach, does not recognize any implied presidential power to suspend the Constitution: 'The Consttution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.' In short, 'emergency does not increase constitutional power nor diminish constitutional restriction' (Ex parte Milligan).Id. at x.
The trouble with this view of course, is that it is inaccurate. Roster proves this over and over in his analysis of presidential action during the Civil War, World War I, the Depression, and World War II. The problem created by our law schools teaching Supreme Court rhetoric other than historical truth is that the legal profession, critical in all aspects of the use of emergency power, is misinformed. They should all read Rossiter as soon as possible.
