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Issues of Method in Analyzing the Policy Response to Emergencies

NCJ Number
206028
Journal
Stanford Law Review Volume: 56 Issue: 6 Dated: May 2004 Pages: 1581-1596
Author(s)
Mark Tushnet
Date Published
May 2004
Length
16 pages
Annotation
This paper is a response to the arguments of Eric A. Posner and Adrian Vermeule regarding the adoption of bad policies that erode civil liberties following a national emergency that generates fear in the populace.
Abstract
The paper indicates that Posner and Vermeule focus on two sets of arguments, i.e. that responses to emergencies inevitably "ratchet" down the protections a constitution provides for civil liberties and that emergencies produce bad policies because decisionmakers are dominated by fear. The latter occurs due to distorted judgments about the nature of the emergency and the effectiveness and consequences of the policies adopted to deal with the emergency. The author of this response to these arguments indicates that Posner and Vermeule are right to point out the weakness of the evidence offered to support claims about "ratchets" and fear and that they are also right to ask for some general analytical reasons for adopting particular kinds of policy responses to emergencies. He disagrees, however, with their descriptions of what is wrong with the claims made about "ratchets" and fear. Whereas Posner and Vermeule view the "ratcheting" down of civil rights and freedoms in response to emergencies as an inevitable consequence of human behavior in response to fear, anxiety, or depression, this paper views decisionmaking in response to emergencies as the manifestation of policy preferences held by decisionmakers prior to the emergency. Whereas the preference for more social control over the populace may be held in check by countervailing views absent a security emergency, the emergency may remove or soften objections to more stringent social control measures. In promoting pre-emergency, social-control policy preferences, policymakers can then use the psychological impact of fear and panic to rally support for their policy preferences that would have been difficult to implement absent the existence of the fear caused by the threatening incident. Such a campaign is also likely to exaggerate the threat beyond its actual potency in order to ensure support for the policy preference. 38 notes