States of Emergency - Centre for Policy Alternatives

the Roman republic itself was sabotaged to serve unconstitutional
and illegal ends, Lirst by Cornelius Sulla during his reign of terror
between 83 and 79 BC, and then by Julius Caesar commencing 48
BC. Both used the forms and powers of the constitutional
dictatorship while doing away with its limitations and
purposes. 164
In the modern era, the best‐known example of how a democratic
constitution was instrumentally used to destroy democracy and
the constitutional order is that of the Weimar constitution in interwar
Germany, through its notorious Article 48. 165 The Weimar
constitution was a liberal democratic constitution that essentially
followed the Roman model of constitutional dictatorship,
interpolated with the German empire’s doctrine of the state of
war, in respect of its emergency provisions set out in Article 48.
This provision included some excessive powers for the President
of the Republic, including the use of the military to enforce public
order, exercisable at his sole discretion. Article 48 also allowed the
suspension of critical fundamental rights. Theoretically, there
were some explicit limitations on the exercise of these powers
such as the subjection of the President to impeachment
proceedings, as well as other constraints implicit from the
constitutional scheme. Neither the legislature nor the courts
164
William E. Heitland (1969) The
Roman
Republic, Vol.2 (Florida:
Gaunt): para.905‐907; Max Cary & Howard H. Scullard (1975) A
History
of
Rome
down
to
the
Reign
of
Constantine (3 rd Ed.) (New York: St.
Martin’s Press): p.274‐280; Herbert F. Jolowicz & Barry Nicholas (1972) A
Historical
Introduction
to
Roman
Law
(3 rd Ed.) (New York: Greenwood
Press): p.56
165
Rossiter (1948), op cit., pp.33‐73; Hans Mommsen (1996) The
Rise
and
Fall
of
Weimar
Democracy
(Chapel Hill: North Carolina UP); Peter L.
Lindseth (2004) ‘The
Paradox
of
Parliamentary
Supremacy:
Delegation,
Democracy,
and
Dictatorship
in
Germany
and
France,
1920s
–
1950s’ 113
Yale
Law
Journal 1341 at p.1361‐1371
95