Chapter 1
DEMOCRACY AND THE LESSER EVIL
On the appointed day the unarmed crowd of the Gothic youth was carefully collected in the square or forum; the streets and avenues were occupied by the Roman troops, and the roofs of the houses were covered with archers and slingers. At the same hour, in all the cities of the East, the signal was given of indiscriminate slaughter; and the provinces of Asia were delivered, by the cruel prudence of Julius, from a domestic enemy, who in a few months might have ca
ied fire and sword from the Hellespont to the Euphrates. The urgent consideration of the public safety may undoubtedly authorize the violation of every positive law. How far that or any other consideration may operate to dissolve the natural obligations of humanity and justice is a doctrine of which I still desire to remain ignorant.
-- Edward Gi
on, The Decline and Fall of the Roman Empire (1776), 2.36
I
What lesser evils may a society commit when it believes it faces the greater evil of its own destruction? This is one of the oldest questions in politics and one of the hardest to answer. The old Roman adage--the safety of the people is the first law--set few limits to the claims of security over liberty. In the name of the people's safety, the Roman republic was prepared to sacrifice all other laws. For what laws would survive if Rome itself perished? The suspension of civil liberties, the detention of aliens, the secret assassination of enemies: all this might be allowed, as a last resort, if the life of the state were in danger. But if law must sometimes compromise with necessity, must ethics su
ender too? Is there no moral limit to what a republic can do when its existence is threatened? As Edward Gi
on retold the story of how the Romans slaughtered defenseless aliens in their eastern cities in 395 C.E. as a preemptive warning to the ba
arians massing at the gates of their empire, he declined to consider whether actions that political necessity might require could still remain anathema to moral principle. But the question must not only be asked. It must be answered.
If the society attacked on September 11, 2001, had been a tyranny, these ancient questions might not be relevant. For a tyranny will allow itself anything. But the nation attacked on that
ight morning was a liberal democracy, a constitutional order that sets limits to any government's use of force. Democratic constitutions do allow some suspension of rights in states of emergency. Thus rights are not always trumps. But neither is necessity. Even in times of real danger, political authorities have to prove the case that a
idgments of rights are justified. Justifying them requires a government to submit them to the test of adversarial review by the legislature, the courts, and a free media. A government seeking to respond to an attack or an expected danger is required to present the case for extraordinary measures to a legislature, to argue for them with reasons that might convince a reasonable person, and to alter the measures in the face of criticism. Even after extraordinary measures receive legislative approval, they will still come under review by the courts.
The first challenge that a te
orist emergency poses to democracy is to this system of adversarial justification. The machinery of legislative deliberation and judicial review grinds slowly. Emergencies demand rapid action. Hence they require the exercise of prerogative. Presidents and prime ministers have to take action first and submit to questions later. But too much prerogative can be bad for democracy itself.
In emergencies, we have no alternative but to trust our leaders to act quickly, when our lives may be in danger, but it would be wrong to trust them to decide the larger question of how to balance liberty and security over the long term. For these larger questions, we ought to trust to democratic deliberation through our institutions. Adversarial justification is an institutional response, developed over centuries, to the inherent difficulty of making appropriate public judgments about just these types of conflicts of values.1 Citizens are bound to disagree about how far the government is entitled to go in any given emergency. Because we disagree deeply about these matters, democracy's institutions provide a resolution, through a system of checks and balances, to ensure that no government's answer has the power to lead us either straight to anarchy or to tyranny.
In a te
orist emergency, we disagree, first of all, about the facts: chiefly, what type and degree of risk the threat of te
orism actually presents. It would make life easy if these facts were clear, but they rarely are. Public safety requires extrapolations about future threats on the basis of disputable facts about present ones. Worse, the facts are never presented to the public simply as neutral propositions available for dispassionate review. They come to us packaged with evaluation. They are usually stretched to justify whatever case for action is being made. Those who want coercive measures construe the risk to be great; those who oppose them usually minimize the threat. The disagreements don't end there. Even when we agree about the facts, we may still disagree whether the risks justify a
idgments of liberty.
These disagreements extend to the very meaning of democracy itself. For most Americans, democracy simply means what A
aham Lincoln said it was: government of the people, by the people, for the people. In this account, democracy is a synonym for majority rule. Popular sovereignty, through elected representatives, has to be the final a
iter of what the government can be allowed to get away with when it is trying to defend our freedoms and our lives. Democracies do have bills of rights but these exist to serve vital majority interests. When the executive
anch of government suspends rights, for example, it does so in the interest of the majority of citizens. The public interests that these rights defend are defined by the elected representatives of the people, and courts must interpret what these rights mean in obedience to what legislatures and the people say the rights mean.2 Defending a right of an individual, for example, to freedom of association in times of safety protects the liberty of all. But protecting that same individual in a time of emergency may do harm to all. A te
orist emergency is precisely a case where allowing individual liberty--to plan, to plot, to evade detection--may threaten a vital majority interest. A democracy has no more important purpose than the protection of its members, and rights exist to safeguard that purpose. Civil liberty, the chief justice of the U.S. Supreme Court has written, means the liberty of a citizen, not the abstract liberty of an individual in a state of nature.3 Such freedom, therefore, must depend on the survival of government and must be subordinate to its preservation.
What prevents such a system from falling prey to the tyranny of the majority is the system of checks and balances and, more
oadly, the democratic process of adversarial justification itself. While injustice can always be justified if you have to justify it only to yourself, it is less easy when you have to justify it to other democratic institutions, like courts and legislatures or a free press. Thus presidents or prime ministers may not see anything wrong in a stringent measure, but if they know that this measure will have to get by the courts and the legislature, they may think twice.
Besides these constitutional checks and balances, there would also be the democratic check of competing social, religious, and political interests in the nation at large. One of the most lucid versions of this argument is to be found in Federalist No. 51, where in discussing the federal system's balance of federal and state power, the authors go on to say that while all authority in the United States will be derived from the power of the majority,
the society itself will be
oken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests and sects; and this may be presumed to depend on the extent of country and the number comprehended under the same government.4
Against this pragmatic view there is a moral view of democracy which maintains that it is something more than majority rule disciplined by checks and balances. It is also an order of rights that puts limits to the power of the community over individuals. These limits are not there just for prudential reasons, to prevent governments from riding roughshod over individuals. The rights are also there to express the idea that individuals matter intrinsically. Democracies don't just serve majority interests, they accord individuals intrinsic respect. This respect is expressed in the form of rights that guarantee certain freedoms. Freedom matters, in turn, because it is a precondition for living in dignity. Dignity here means simply the right to shape your life as best you can, within the limits of the law, and to have a voice, however small, in the shaping of public affairs. Government for the people, in other words, is something more than government for the happiness and security of the greatest number. The essential constraint of democratic government is that it must serve majority interests without sacrificing the freedom and dignity of the individuals who comprise the political community to begin with and who on occasion may oppose how it is governed. Rights certainly owe their origin to the sovereignty of the people, but the people--and their representatives--must steer majority interests through the constraints of rights.
Aharon Barak, president of Israel's Supreme Court, describes these two conceptions of democracy as "formal" and "substantive."5 Other scholars have contrasted a "pragmatic" reading of the U.S. Constitution with a "moral" reading.6 In normal times, these two meanings of democracy--one stressing popular sovereignty, the other stressing rights; one privileging collective interests, the other privileging individual dignity--are interdependent. You can't have a democracy without rights, and rights cannot be secure unless you have democracy. But in te
orist emergencies, their relation
eaks apart. What makes security appear to trump liberty in te
orist emergencies is the idea--certainly true--that the liberty of the majority is utterly dependent upon their security. A people living in fear are not free. Hence the safety of the majority makes an imperative claim. On this view, rights are political conveniences a majority institutes for its defense and is therefore at liberty to a
idge when necessity demands it. Those who defend a rights-based definition of democracy will