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In early Rome, there was an office called the dictatorship. There was a resort to this institution only in an emergency when the senate and the two consuls were persuaded that the latter were not up to the challenge and that the crisis could not be handled unless there was a suspension of the laws that ordinarily limited the power of magistrates. The dictator’s scope was restricted. He was appointed for a particular purpose – and for that purpose only. He was supposed to resign when the emergency passed. Under no circumstances could he remain in office longer than six months, and when his authority lapsed he was subject to judgment. Necessity was the sole justification for any breach of the law.
The office fell into abeyance after the Second Punic War. It was revived, however, in a different form by Sulla who held the office for a handful of years after Rome’s first civil war, and it was revived again in yet another form by Julius Caesar, who had himself named dictator for life. During the American Revolution, a proposal was floated for including a provision for dictatorship within the Virginia constitution, and Thomas Jefferson fiercely attacked the idea in his Notes on the State of Virginia.
Thanks in part to Jefferson’s efforts, the word is not to be found in any of our state constitutions, but the thing itself does exist. For there are various provisions in the laws of our states for declaring a state of emergency and for the exercise of what amount to dictatorial powers. This is arguably unavoidable, for necessity does on occasion impose itself on us, and in the crunch it is crucial that someone be empowered to act with energy, vigor, and dispatch. But what is unavoidable is also in this case exceedingly dangerous, as the Roman example suggests and Jefferson emphasized. What is happening right now in Michigan should be a warning to all Americans.
Dictatorial authority is an invitation to tyrannical conduct. It brings out the worst in those who enjoy bossing others around and making them crawl. As I have specified in a series of blogposts – here, here, and here – Michigan governor Gretchen Whitmer is a case in point. It is, therefore, no surprise that the arbitrariness and capriciousness of her edicts have inspired widespread popular protest and have occasioned a refusal to enforce her executive orders on the part of a host of county sheriffs and local prosecutors. Nor is it astonishing that the Republican legislature, which originally sanctioned her declaration of a state of emergency refused late last week to renew its bill of authorization. In Detroit, in the collar counties, and perhaps also in Washtenaw and Kent Counties, where the University of Michigan and Grand Rapids are situated, there may have been grounds for the enforcement of social distancing – and there may be now (though I have grave doubts). In most of the state, however, this was absurd – as the local fatality rates of the coronavirus demonstrates. We are, as I said in an earlier post, in danger of committing suicide for fear of death, and the Republicans, spurred on by small businessmen from across the state, have finally caught on.
What this means is that Michigan is facing a grave constitutional crisis. Two laws are pertinent: the 1945 Emergency Powers of the Governor Act and the 1976 Emergency Management Act. Whitmer points to the former, which authorizes the governor to act unilaterally in declaring an emergency and in then issuing executive orders. The Republicans point to the latter, which authorizes the legislature to declare an emergency and to empower the governor for a period of 28 days to address the challenge. There seems here to be a conflict of laws, and in normal circumstance later legislation takes precedence over prior legislation. There is also reason to think that the 1945 act was unconstitutional from the git-go because it allows the governor at her own discretion and for an indefinite period of time to combine both executive and legislative powers in her own hands. Put simply, Gretchen Whitmer is conducting herself less in the manner of the Roman dictators of the early and middle republic and more like Sulla and Caesar.
The English learned of the danger attendant on a combination of the executive and the legislative power the hard way in the course of the 17th century. For twelve long years, during what historians call the period of personal rule (1628-1640), Charles I ruled without calling Parliament by exercising both powers; and soon thereafter the Long Parliament ruled for an even longer period, also exercising the two powers. In consequence of their experience with the arbitrary rule of a monarch and that of the House of Commons, the Levellers, English republicans such as Marchamont Nedham, and their successors among the English Whigs articulated the doctrine of the separation of powers. Later, in The Spirit of the Laws, Montesquieu found a word to describe the consequence of combining of these powers, and that word is despotism – which is what Michiganders are experiencing now.
The Republicans in the legislature intend to sue, and this dispute will no doubt get settled in the courts – which worries me because, thanks to our last governor (a Republican-in-Name-Only), we now have a progressive, lawless state Supreme Court apt to make decisions based on the policy preference of the judges and not on the law and the constitutional principles underpinning it.
I should perhaps add that Whitmer’s refusal to reach an accommodation with the Republican-controlled legislature, which was all-too-willing to cooperate, is a sign of the stupidity that causes her to be called, in certain circles, the Michigan Moron. Had she proceeded in the manner in which she began, under legislative authorization, the Republicans would have shared the blame for the economic damage inflicted on the people of Michigan by her ill-advised extensions of the shutdown. Now, thanks to her refusal to reach a compromise with the legislature, the blame will solely be hers.
Of course, this may not matter to our governor. The welfare of her fellow citizens is not her primary concern, and her time horizon is short. She co-chaired Joe Biden’s campaign. She is a governor in a state in the Midwest that he must take in November if he is to defeat Donald Trump; she is said to be on Biden’s shortlist for the Democratic vice-presidential nomination; and this weekend she slavishly defended him against the accusations lodged by his former employee Tara Reade. She may think that drama, conflict, and an air of decisiveness heighten her chances of being chosen, and she may be right. For Joe Biden was never among the brightest bulbs, and he is now quite obviously senile.Published in