"Sovereign is he who has the power to declare an emergency," wrote Carl Friedrich Schmidt. Here Schmidt warns that in times of crisis, good legislative sense goes out the window, if the threat of an emergency is grave enough.
If Schmidt’s aphorism is true, we might need some legislators to protect liberties from a stampede of ill-conceived and hasty policy. In less than two months, our well-meaning Congress has approved hundreds of billions of dollars in bailouts for ailing industries. Most Americans tacitly approve. Obviously, no one wants to see airlines, insurers, producers, or the economy collapse. And in a time of war, which is probably the best analog for this period, unusual measures have to be adopted. That may even require the suspension or temporary curtailment of certain civil liberties.
I, for one, think it is legitimate to have reasonable temporary suspensions of liberties amid grave threats. A state of war jumbles the normal calculus of liberty. Who among us, for example, would not endure a longer line at an airport to try to ensure that a plane is not hijacked and used as a weapon?
However, it is one thing to suspend liberties temporarily; it is another altogether to create an even larger state apparatus, while under the cloak of emergency. The Democratic measures, for example, have attempted (wisely, I think) to delimit some tax breaks to one year. Although smaller taxation, in general, should be a goal for our nation, there are times that prudence calls for a temporary interruption of that goal. This is one of those times.
What concerns me, though, is that legislation can often take on a life of its own. Once we create new cabinet departments, provide specified bailouts, add economic stimuli, and so forth, each of those measures has the potential of becoming an institution that is as tenacious as a mad Afghan leader who hides in caves.
So, we might propose three things for consideration:
- If our current situation is an emergency, have Congress define the emergency. Are we in a state of war? Urban assault? Economic recession? If it is war, let it be defined (even though this is difficult with a "stateless" enemy) and also define when the war will be over. It seems that in order to gain maximum support for emergency measures, the nation needs to know it is at war.
- If it is a war-like emergency with a limited duration, then let legislation clearly be designated as permanent or temporary. While we may cede some temporary sovereignty to the declarer of the emergency, it is doubtful that we wish to cede permanent sovereignty. That is a prescription for tyranny.
- Even if we are in a war-like emergency and experience a temporary suspension of prudential policies, we shouldn’t forget the best lessons of the past 50 years. We ought to recall how prudence has taught us the best government is the one that does not assume the prerogatives of other spheres. The government, even in emergencies, may not be the best sphere to do certain things for the family or the individual.
John Willson of Hillsdale College has astutely explored the dramatic expansion of American policy under wartime emergencies. American welfare statism itself arose only after and under certain conditions. Willson explains:
World War II was a godsend to American liberals. The New Deal had been dead in the water since 1937, torpedoed by its fundamental failure. A coalition of interest groups pestiferously frustrated President Roosevelt’s attempt to grow the state. Ultimately, Roosevelt was able to triumph because the emergency of Europe and Pearl Harbor altered the political landscape.
The result in that case was a swelling state apparatus, which could possibly be justified during the war. However, long after the war ceased, that apparatus only continued to grow.
Might we be in the process of over-feeding our own government under the guise of granting sovereignty to politicians during an emergency? It is a question worth considering.
All of this, however, should also balance the need for security. At the same time, it is not always wrong to curtail certain liberties. Liberty, as September 11 has taught us, should not be unreasonably absolutized, for evildoers would have carte blanche if that were the case.
What I am saying is this: Give balance a chance. Several deep breaths may be needed, and legislation might be better if it isn’t rushed ... lest we find that we have only built a more massive political edifice in this time of real need.