Syracuse University College of Law
In The Specter of Dictatorship,1 David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed to establish institutions and customs capable of containing a President with 'despotic' tendencies," but that such mechanisms have since become "eroded."2 That much is not particularly novel, but Driesen's nearly singular focus on the problem of "judicial acquiescence" helps the book to stand apart from approaches that focus more explicitly on questions of design,3 the production of norms, or perhaps even the cyclical nature of political decline and regeneration.4 The Specter of Dictatorship is timely, written in accessible prose, and takes seriously the possibility of a dictatorship in the United States.
Driesen's choice to make the centerpiece of his book about the jurisprudence addressing presidential power, however, renders the project vulnerable to the criticism that both his diagnosis and his solutions may be a tad court-centric. In this essay, I will probe why Driesen's account might lead him to miss important things that ail American democracy. Ultimately, those factors should lead us to be modest in predicting what beneficial role judges can play in constraining a president. There may be important moments when judicial decrees might be heeded and intervention would do some good, but judges alone cannot save democracy.
Robert L. Tsai,
Why Judges Can't Save Democracy
Syracuse Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3166
Draft available on SSRN