State of Emergency

Whether we describe our current condition in terms of postmodernism, neoliberalism, or globalization, the core problem is the loosening of traditional social bonds and institutions. The impact of social media and the transformation of the public sphere by the internet have surely accelerated this development. One consequence is the potential for greater volatility, since public opinion is less disciplined by establishment gatekeepers now than it was in the past. We experience a circulation of information that has not been vetted by sanctioned experts. And it seems more and more likely that spontaneous or disruptive social movements will arise outside of elite control.

The so-called “color revolutions” of the early 2000s toppled regimes. In a similar fashion, the presidential election of 2016 rocked the power-­sharing agreement between establishment Democrats and Republicans. The primaries were marked by populist revolts, by the bases of both parties rebelling against their parties’ establishments, with one nearly nominating Bernie Sanders and the other succeeding with Donald Trump.

It was a shock to the system, and the system has responded with efforts to discipline opinion, politics, and the culture as a whole. These efforts are often punitive and censorious, hardly in keeping with liberal norms and traditions. The illiberalism has been justified by invocations of a “state of emergency.”

The state of emergency vindicates actions ­unbound by normal constraints. Those constraints need not be legal in the strict sense. The rise of Donald Trump led many journalists to proclaim that the usual rules about nonpartisan reporting must be set aside, because Trump was deemed a racist, misogynist, and authoritarian, making him a self-evident threat to democracy. Notions such as patriarchy and systemic racism have generated an atmosphere of emergency on many university campuses, justifying efforts to silence speakers and otherwise set aside the norms of open debate. A similar atmosphere of emergency raises the stakes in political and cultural conflict, fueling the harsh and merciless phenomenon of cancel culture. In some instances, the suspension of norms is formal and legal, as happened in Canada when Justin Trudeau’s government invoked the Emergencies Act to suppress protests by truckers in Ottawa and elsewhere.

The rule of law is a central tenet of liberalism. It is a bulwark against the arbitrary exercise of power, which is one of the perennial enemies of freedom. Thus, the invocation of a state of emergency is by definition illiberal. It authorizes measures, actions, and policies that are determined solely by the authority of individuals or cliques. Instead of governance by law, a state of emergency allows for governance by decree.

Whether the purported threat involves a pandemic, climate change, systemic racism, or the rise of an anti-establishment candidate for office, a declaration of emergency aims to curtail liberty. This aim was obvious during the public health emergency of 2020. In political emergencies, methods are often more subtle. But there as well, the goal is to restrict liberty in order to prevent the spread of spontaneous politics that might threaten the status quo. Twitter accounts are shut down, “fake news” is scrubbed from social media, and the transgressions of individuals associated with populist causes are vigorously prosecuted.

Legal theorists recognize the need to account for the state of emergency, and nearly all legal systems provide a mechanism for the invocation of emergency powers by leaders in times of war or in the face of other dire threats. Thus, unlike the criminal who breaks the law or the protester whose civil disobedience appeals to a higher law, those who invoke the state of emergency do not do so in opposition to the legal system. Rather, in a state of emergency, it is the law itself, or more precisely, the sovereign body whose duty it is to assert the law, that suspends the law, and does so in order to preserve and protect the body politic. Political leaders—and the establishment elites who are custodians of powerful institutions—assert that they are compelled to violate core principles in order to protect the integrity of the system and ward off catastrophic damage.

In the American legal tradition, the paradox of suspension of liberal norms for the sake of preserving them is explained by the formula “the Constitution is not a suicide pact.” ­Situations—that is to say, emergencies—are imaginable in which the government must suspend the constraints imposed upon it by our Constitution in order to ensure the nation’s survival.

Thomas Jefferson’s 1803 decision to sign the treaty for the Louisiana Purchase is an example. His approval of the purchase before Congress had allocated funds ran counter to Jefferson’s own understanding of the power of the presidency. Furthermore, the whole transaction can hardly be squared with the larger principle of self-­governance. The Louisiana Purchase not only involved a massive territorial acquisition but also increased the population of the country without any democratic consent by its citizens or, for that matter, without the approval of the inhabitants of the acquired territories. Such a move was typical for European sovereignties of the era, but it was on its face inconsistent with American republicanism.

Jefferson justified his decision by appealing to the logic of emergency. “A strict observance of the written law is doubtless one of the high duties of a good citizen,” he wrote, “but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.” He then turned to reasoning akin to rejecting the notion of the rule of law as a suicide pact: “To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”

A more striking example of the emergency action in American history is the suspension of habeas corpus by Abraham Lincoln during the Civil War. The Constitution allows for a suspension of this right, which amounts to a right not to be imprisoned without charges. (See Article 1, Section 9, Clause 2: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”) But the Constitution ascribes this power to Congress, not to the presidency.

With the Southern states in rebellion, Lincoln defended his decision before critics who charged him with violating his oath of office to “take care that the laws be faithfully executed.” The new president pointed out that “the whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States.” Turning to his suspension of habeas corpus, Lincoln invoked the same reasoning Jefferson had employed. “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”

Though one might easily grant Lincoln the urgency of the threat and note his need to act when Congress was not in session or easily recalled, history shows that the targets of arbitrary imprisonment included more than active Confederates. They were in some cases people engaged in legitimate political criticism of Lincoln and his war policies, including those writing editorials critical of the suspension of habeas corpus! The line between responding to the existential threat of a real insurrection, on the one hand, and suppressing dissent more broadly, on the other, was easy to cross. That arbitrary power will be used in partisan ways is as much a danger today as it was in 1861.

In 1949 Justice Robert Jackson was the first to introduce the phrase “suicide pact” into legal discussions. He used it in the conclusion to his dissent in Terminiello v. City of Chicago. The majority had overturned a conviction for disorderly conduct involving speech that a lower court had deemed incitement to a riot. Against this protection of free speech, Jackson asserted that the state’s duty to protect civil order overrides an individual’s right to free speech. “The choice is not between order and liberty,” he said. “It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” In 1963, Justice Arthur Goldberg repeated the phrase in a majority opinion. The case involved draft evaders who claimed a right of conscience that exempted them from service. Rejecting the superordination of that right, Goldberg wrote, “The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact.”

Neither of these Supreme Court cases involved situations as threatening as civil war. But both appealed to the logic of emergency, deeming some situations serious enough to warrant limiting fundamental liberties. In American constitutional law, jurists offer principles that include exceptions from the rule of law. We are not at liberty to falsely shout “Fire!” in a crowded ­theater, for example. In cases of formal declarations of emergency, our political tradition also tries to ensure that limitations on liberty are reversed once the emergency has subsided. In some state constitutions, a governor’s declaration of a state of emergency expires after a span of days or weeks, after which it must be authorized by the legislature. These and other measures are deemed necessary to safeguard against a misuse of the principle in order to midwife a tyranny that would make the restrictions on freedom permanent.

Efforts to hem in abuses of emergency run up against an insuperable limit: the logic of emergency, which establishes a state of exception and sets aside legal constraint. This limit on legal efforts to limit the misuse of extralegal powers came into view during the War on Terror. In the aftermath of the 9/11 attacks, the prospect of a repeat of the devastation appeared to justify intrusive policing and extraordinary investigative actions. Judge Richard A. Posner commented, “Even torture may sometimes be justified in the struggle against terrorism, but it should not be considered ­legally justified.” His reasoning was sound. “Extreme situations,” as Jefferson and Lincoln argued, impose a necessity that is moral and political, not legal. One can detect an echo of the Declaration of ­Independence—“in the course of human events it becomes necessary”—in Posner’s analysis, though he refers to United States v. Curtiss-Wright Export Corp. (1936), which held that the president has exclusive power over foreign policy, a power rooted in the nation’s sovereign power, won in a successful revolution against Great Britain. The maintenance of sovereignty takes precedence over other political projects, including that of consistent legality in the exercise of power. If the defense of the nation fails, Posner reasons, then our government cannot pursue any of its other goals. But he wants to keep this necessity outside the rule of law, for allowing the possibility of exception (“even torture”) inside our constitutional system would undermine it at every turn.

Posner explained the logic of emergency in the shadow of 9/11, and it was with the prospect of future terrorist attacks in mind that he defended the permissibility of the extralegal steps taken in the War on Terror—a paradoxically legal exception to what is prohibited by law. Yet, as he presciently pointed out, it is not only “defense against human enemies” that may create emergency situations. Writing some fifteen years ago, he prophetically asked us to “imagine strict quarantining and compulsory vaccination in response to a pandemic.”

We no longer need to imagine. The COVID-19 pandemic offered an example of emergency measures that were deemed necessary in the same way that Posner and previous judges had outlined. Because our rule of law is not “a suicide pact,” liberties may be curtailed and rights suspended by executive decrees—in order to save lives. In 2020, the freedoms of assembly, worship, and movement were subject to drastic limitations.

Debate about these restrictions was embittered by the polemics of the presidential campaign. But the poisonous atmosphere had deeper causes. At the height of public concern, the slightest criticism of the emergency atmosphere was severely censored. In view of claims of looming emergencies elsewhere—climate, racial injustice, gender roles, and more—we are wise to examine powerful new trends that stoke emergency thinking and weaken traditional limits. Liberty is fragile, easily lost, and difficult to regain. Given our recent experience, we can identify four elements, unique to the current situation, that tempt our elites to pivot from democratic governance to emergency governance.

1) Scientism. During the COVID emergency, ­scientific authority was ascendant. “Follow the ­science” became the new credo. In this view, ­science always rests on a firm consensus, and it excludes the possibility of questions. “Science has spoken” takes on the meaning of “Thus saith the Lord.”

This invocation of science in order to justify emergency measures has historical precedent. This is a role science played in the Soviet Union and ­Nazi Germany, where the suspension of traditional moral norms, to say nothing of legal limits, was justified by appeals to “scientific socialism” and “race science.”

Appeals to the authority of scientific claims extended beyond the pandemic. During the summer of BLM protests, thousands of public health experts rushed to sign a statement declaring racism a public health emergency. It is telling that we seem to have left behind the culture that described racism as a crisis of democracy, which a more perfect practice of democracy would ameliorate. That was the ambition of the 1965 Voting Rights Act. Nor do we now say that racism is a crisis of religion, as did Martin Luther King, Jr. in his “­Letter from Birmingham Jail,” which a conversion of heart and consistent adherence to biblical teaching would temper. This is an inauspicious change, for scientific authority, unlike democratic action and religious exhortation, underwrites technocratic management, which, as the Chinese model indicates, can be impatient with procedural delays and uncooperative citizens. One easily imagines a technocracy rolling from emergency to emergency as it transfers authority from civic institutions to scientific ones, institutions staffed by technocrats and congenial to the rule of experts.

2) Management of Opinion. Digital technology’s undermining of elite control of information has given rise to countermeasures designed to combat “disinformation.” The resulting limitations on the free exchange of opinions and ideas have been extensively documented. At this juncture, media and internet platforms have become willing agents of censorship, cooperating with elites in other spheres to de-platform purveyors of unauthorized opinions. In order to achieve the policy outcomes deemed necessary, it has become legitimate to suppress dissent.

The notion of “fake news” fuels this transformation of the public square. It plays a central role in a rhetoric of emergency, which frames the present situation as a breakdown in democracy. Americans who voted for Trump, question mask policies, or doubt dire claims about climate change are deemed “low information voters,” who, if unchecked, will shipwreck our society. This outlook encourages a paradox that parallels emergency suspension of the rule of law in order to save the possibility of a rule of law. Today’s censors see themselves as truth-guardians. By their way of thinking, they are suspending freedom of speech in order to save our system from “authoritarians,” enemies of freedom. Whether the censorship is carried out by the government or outsourced to private monopolies is of secondary importance. If we have a state of emergency, it follows that dissent on matters of disease, climate, gun violence, racism, and other issues poses a great danger to our future as a nation (indeed, as a species), and therefore it must be both prohibited and punished. Journalists are among the most zealous partisans in this purging of dissent, but they have hardly been alone.

The academic world is likewise tending toward repression. The consequence for the research enterprise will be a decline in the quality of work, as hypotheses and experiments become subject to political constraints. The teaching mission of higher education will train students for conformity, rather than for critical thinking, objective analysis, and fertile imagination. Some of the trainees may become true believers in the approved theories of race, climate, and disease, but a significant number will merely feign adoption of the official policies, responding to instructors’ questions with ­preapproved answers. Parroting is not difficult.

A degradation of learning is already diminishing the quality of education at all levels. This debilitation of American education may come to be viewed as a national security risk, potentially triggering yet another declaration of emergency, though in this case it could constitute a backlash against the current primacy of progressive cultural ideologies.

3) Victims, guilt, and ressentiment play important roles in the current atmosphere of emergency. To foster a general atmosphere of urgency and mistrust, our academics, intellectuals, and journalists misrepresent the past as nothing more than an accumulation of crimes and violence. Young people are inculcated with a Manichean view, one in which innocents suffer and culprits brutalize. 1619 ­replaces 1776. Colonizers, enslavers, and exterminators of non-Western peoples are portrayed as the sole representatives of the American ­experience. In this view, there was no struggle for self-­government, no pursuit of religious liberty, nor any Civil War sacrifices to end slavery. The national legacy, according to this perspective, is only evil.

The propaganda of inexpiable guilt produces a toxic combination of guilt-ridden citizens and utopian activism that aims to erase the wicked past. The emphasis on guilt echoes the obligatory “anti-fascism” that served as the state ideology of the East German dictatorship. One is a priori culpable unless one identifies with the victims. In this morbid management of affect, the only outlet involves nihilistic expressions of ressentiment, evident in the wave of statue toppling in the summer of 2020.

Today, violence thrives in a strange dialectic of reduced security in public spaces and enhanced security for the privileged, wealthy, and powerful. Police protection is reduced in the South Side of Chicago, but the Capitol complex where national politicians work is fortified. The violence and destruction caused by activists reinforces elite control, for it leads to the vast expansion of the security state and its methods of surveillance. New technologies allow for constant monitoring of dissident speech by social media platforms.

4) Targeting Enemies. Our addiction to emergency is fed by naming enemies, foreign and domestic. The preferred enemy has been Russia. Putin’s invasion of Ukraine has only added luster to this choice, which is in any event reinforced by our history of Cold War competition with the Soviet Union. As the enthusiasm of the giddy days of globalization subsides, China may soon join Russia as the threatening enemy. Yet despite the Uyghurs, Beijing’s aggression in the South China Sea, its violation of the status of Hong Kong, and the pandemic, China has yet to elicit the sort of hostility official opinion reserves for Russia. Perhaps this is because so many rich Americans are deeply invested in China, hoping to be made richer still.

As for domestic enemies, the “deplorables,” Trump voters, white nationalists, the January 6 ­rioters, anti-vaxxers, and religious believers are at the top of the list. In February 2022, the Department of Homeland Security’s summary of terrorist threats included “the proliferation of false and misleading narratives, which sow discord and undermine public trust in U.S. government institutions.” One must savor that phrasing: Evidently, distrust of a government institution now constitutes a terrorist threat. That is a wide net indeed, reaching far beyond those who say out loud that they think the legitimacy of the 2020 election was subverted by “emergency” changes in campaign laws, hundreds of millions in special donations to “aid” election workers, and media partisanship. Are they not also a security threat?

The scope of the repression agenda is enormous. In our notionally liberal society, invocations of emergency are moving us toward illiberal methods of social control, such as censorship and suppression of political opposition. When employing these methods, liberal elites have a strong need to justify their interventions by claiming that they are saving liberal democracy from its enemies—or the world from climate catastrophe. Establishment liberals cannot do without a long list of enemies to justify expanding police power and emergency sanctions. Welcome to the new Red Scare, repurposed as anti-fascism, overcoming climate “denial,” or fighting some other political pathology.

As we pivot from the pandemic to mobilization against Russian aggression in Ukraine, elites in the West have grown fond of the logic of emergency. In the United States, a strange hybrid is taking hold, one that spreads lawlessness and magnifies arbitrary and unchecked authority. Lawlessness takes many shapes: the rising crime rate, the withholding of punishment for petty crimes, the demonization of law officers, and stand-down orders during the riots of 2020. Yet even as the state gives up on protecting its citizens, it lays claim to ever greater power to intrude into society and economy. Who can doubt that if a new public health threat emerges, authorities will rush to repeat the restrictions imposed during the pandemic? Perhaps we will endure lockdowns in order to address the “climate emergency.” Race-based college admissions and corporate hiring justify violations of the plain sense of the Civil Rights Act of 1964 by insisting that we face an emergency situation of white privilege. Countering Russia may serve as an excuse to expand government control of the economy beyond that already imposed by the sanctions regime.

In addition to government measures, a public-­private partnership is emerging that seeks to ­coerce behavior and opinion into ideological grooves. Whether it takes the form of professional sports leagues, media companies, Wall Street ­behemoths, or higher education, we increasingly face a regime that does not express the popular will but is rather a governing establishment intent on transforming the people. Bertolt Brecht wrote a poem in response to the 1953 workers’ uprising against Communist East Germany. It bears the ironic title “The Solution.” Brecht mordantly reports that the communist government no longer trusts the people, and then poses a bitter rhetorical question: “Would it not . . . be simpler for the government to dissolve the people and elect another?” This sarcastic proposal sounds increasingly real, as dissent is denounced or silenced.

Whether by refusing to stem illegal immigration, or by indoctrinating the young through the management of opinion in legacy media and online, our regime invokes declarations of ­emergency—most informal but some formal—to achieve the same solution: electing another people. Will it succeed? The nexus of government, media, major corporations, and the education ­establishment is formidable. In order to sustain its top-down agenda, it aspires to a permanent state of emergency to impose a new mode of governance by intimidation, censorship, and unilateral action.

Deep trends encourage this evolution. The social cleavages that have opened in the wake of globalization have weakened inherited social ties. This weakening produces increased fragmentation, which makes democratic self-government difficult. Government by emergency decree and executive order—reinforced by prestige media and Twitter mobs—is a response to this situation. But it does not work well. By limiting freedom, empowered authorities who promise to remedy our problems exacerbate them instead, as they accelerate the same social pathologies that lead to emergency governance in the first place. The lockdowns left us more fragmented and atomized.

Yet it would be a mistake to exaggerate the internal coherence or seamlessness of the present system. There are tensions in our managed emergencies, as the varied responses to the pandemic indicate. Moreover, the ideological narrative is less consistent than it seems. Consider, for example, the fiction of intersectional ­theory that all the various marginalized groups are aligned with each other. Nothing could be further from the truth. Minority communities, assumed to be progressive, often display cultural conservative currents at odds with liberal ideology. Residents in disadvantaged communities are not eager to lose police protection, no matter how loudly liberals clamor for defunding the police.

The Rainbow Coalition came together against an imaginary common enemy (white male social conservatives, mainly), but as the fiction of that enemy has faded and as a result of social changes, the groups within the coalition find that they have conflicting needs. African Americans and Asian Americans are not at all aligned with each other on questions of selective high schools or affirmative action in college admissions. Nor is any minority group, including Hispanics, as supportive of open borders as is the liberal elite. Tensions such as these abound, which is why the insistence on emergencies is so prominent in the rhetoric of established politicians and journalists. They need to claim an imminent threat—whatever its nature—to justify short-circuiting the democratic process and ruling in accord with elite opinion. This may work in the short run, but ordinary people get wise, and emergency talk quickly undermines the little elite legitimacy that remains.

It is increasingly clear that white working- and middle-class Americans are becoming alienated. Trump voters believe that the election was a scam, the media are fake, and politicians corrupt. Meanwhile, leaders of victim groups have for a long time argued that our democratic institutions are untrustworthy. Trust is eroding not just at the margins but in the center of society, and public opinion of Congress and journalists cannot get much lower. Indeed, the system of political representation in the United States now elicits skepticism akin to the widespread “democratic deficit” in the European Union. Add the growing estrangement between elite values (the real home of political correctness) and the life-worlds of many Americans who are not predisposed to accept governance by emergency decree as the normal state of affairs in democracy, and one sees a public square that will grow only more dysfunctional, unless these fundamental conflicts are addressed.

The distinctive feature of our current state of emergency is therefore instability. We endure mandated conformism from above, yet elite control is severely limited by widespread doubts among ordinary Americans about the legitimacy of the system. The self-assured dogmatism of the prestige press, the exhortations of politically correct celebrities, and the moralizing of university scolds conjure the illusion of a one-­dimensional value system that vilifies dissidents and allows for no doubts. Yet hardly anyone believes these ­sources. Their narratives no longer persuade.

The emperor is powerful. All elites are. But the same emperor is seen to have no clothes. To my mind, this gives reason for hope. The populist skepticism of ordinary Americans opens up considerable space for oppositional politics, despite the emergency-talk and its enforcers. Let us not overstate the power of the emergency-declaring ­Leviathan that stands on feet of clay. Nor should we succumb to counterproductive extremism, which is used by the ideologues of the establishment to justify their emergency powers. Let us be confident that their time is passing. Freedom can be restored. What is needed now is integrity, character, courage, and the patience to choose one’s battles wisely, always with an eye to winning.

Russell A. Berman is the Walter A. Haas Professor in the Humanities at Stanford University.