With the threat that Donald Trump will simply bypass Congress and use the National Emergency Act to seize military funds for his campaign vanity project, there have been quite a few mentions of “Article 48.” That’s the article that, in the German Weimar Republic, allowed the president to take action without permission of the Reichstag. William Shirer, author of The Rise and Fall of the Third Reich, is not alone in identifying misuse of Article 48 as leading to a loss of representative democracy even before Hitler rose to power.
But there’s another historic parallel that bears examination—and this one was a favorite of the men who wrote the Constitution. This one requires going just a bit further back.
In 509 BCE, the Romans sent their king Lucius Tarquinius Superbus, or Tarquin the Proud, packing. Tarquin, who may or may not have been imposed on them by their Etruscan neighbors, is remembered in Roman history as a tyrant (and his son is remembered as a rapist). Whether or not either of those things is true, his expulsion and exile ended the Roman kingdom and marked the beginning of the Roman republic.
Dedicating themselves to the idea of No More Kings with a fervor that would have made the Schoolhouse Rock song a popular ditty, the Romans spent the next few years designing a government that deliberately spread power out among competing groups and gave no one man unified control. At every level, they based government roles on collegia—collegial bodies—with at least two men (and yes, only free adult men) sharing the power of each post. With elections every year, and no one person able to direct the force of the whole city, they sat back in relief. No more kings.
Except that it took the Romans only a couple of decades to determine that, on a few occasions, governing the city through a set of several dozen praetors, quaestors, aediles, and consuls wasn’t all that efficient. Especially when the problem at hand involved an army advancing on Rome with swords and spears and perhaps an elephant or two. So, to deal with this situation, the Romans created legislation that was amazingly similar to the National Emergency Act.
Under the National Emergency Act, Congress has to approve any continuation of an emergency declaration beyond six months. It also worked that way in Rome. The National Emergency Act is limited almost entirely to military emergencies. So was the Roman version. But unlike the United States, the Romans didn’t have a president. There was no one already in office who could obviously absorb this emergency power. So the Romans appointed someone. And his title was dictator.
In 458 BC, former allies to the east of Rome broke a treaty and marched on Roman towns. At first the Romans responded by sending out two armies, each led by one of that year’s pair of consuls. It did not go so well for Rome. The first army paused to rest on the edge of enemy territory and was immediately surrounded. The second army could not break through the siege to free them. Definitely a bad beginning.
At that point, Rome decided to hand the dictator chit to a man named Lucius Quinctius Cincinnatus. Cincinnatus was a former consul from a wealthy Roman family, one of the elite patricians, and had spent his early life campaigning against giving any power to the more numerous plebeians. His son was even more violently opposed to giving any rights to those low-class scum. But then Cincinnatus ended up losing most of his family fortune in political conflicts, saw his eldest son sent into exile, and found himself reduced to holding a small family farm, only a few acres, barely enough to feed his remaining family.
When the war broke out, Cincinnatus was 60, broke, and devoting himself to plowing a not-so-great set of fields with a borrowed pair of oxen. A group of senators arrived at his tiny farm to find the man they had just named dictator sweating shirtless behind the traces as he plodded along the furrows of his would-be wheat crop. He had to call for his wife to bring out his toga and wrap it around himself before receiving the official word that the republic was under martial law and he, Cincinnatus, was now running the whole show.
He accompanied the senators back to Rome, assembled his leadership team, put together the remains of the consul Rutilus’ army, and called on what additional men he could raise on the spot. One day after arriving in Rome, he marched out. He arrived at the battlefield by night and had his men, who had marched all day without a break, encircle the encirclers. At dawn, they attacked. By noon, the enemy force—caught between two Roman armies—surrendered. That evening, the Romans looted their enemy’s camp and celebrated their victory.
Then Cincinnatus walked back to Rome and surrendered his post. Though he was a national hero with the power, both by law and by force of the army at hand, to do as he wanted, Cincinnatus retained his title not one moment longer than he needed it. Two weeks after he had received the visiting senators, the former dictator was back in the field, plowing.
How much of the story of Cincinnatus is true? It’s difficult to say. The story isn’t even consistent among ancient Roman sources, and it’s certain that the version that comes down to us today has been smoothed by generations of idealistic sandpaper and papered-over with many layers of propaganda. Like most stories of Rome’s early period, it’s more mythology than history.
But the theme of the story explains a lot. It shows exactly what the Romans thought of as ideal governance: that no one would try to take any more power than was needed for the good of the state. Cincinnatus was a Roman hero not because he was a dictator, or not even because he won a battle; he was a hero because he surrendered power.
While many people like to pretend that the authors of the Constitution found some inspiration in other tomes, what’s dead certain is that they did pass around multiple volumes on the history of the Roman republic. Historians like Polybius and Livy are all over the notes of Adams, Madison, and Jefferson. The divisions of the U.S. government were deliberately designed to mimic those of Rome (right down to the decidedly non-democratic bits like the distribution of senators and the workings of the Electoral College).
The story of Cincinnatus is also one that was very well known by 18th-century Americans. It was a story so familiar and so often celebrated that Cincinnatus was the model of the sort of farmer-soldier-citizen beloved by Thomas Jefferson. When, at the end of the Revolutionary War, George Washington chose not to leverage his popularity and ready military force, but hand in his sword and return to Mount Vernon, he was celebrated as the “American Cincinnatus.” He was given that title a second time when he refused to stay in office after two terms as president.
The National Emergency Act, like the Roman legislation that created the post of dictator, was written in recognition that sometimes there are situations where it’s simply not possible to conduct a robust national debate. Some things require immediate action. There are times in which power, for a brief period, falls into a single pair of hands.
What the National Emergency Act does not envision, and was never intended to sanction, is the use of that power when there is no emergency. Like today. There’s no 9/11. No incoming missiles. No American ship or planes under enemy guns. No incoming army. Or elephants.
The use of the act to force through a decision not because Congress hasn’t had a chance to act, but because Congress has acted to oppose that decision, isn’t proper use of the NEA’s power. It’s abuse. The person who takes such action becomes a dictator—and not in the Roman sense.