Democracy and emergency

Why Paul counters Rome's claims to "peace and safety"

Democracy can lead to tyranny, the Federalist argues. This devolution starts when people conduct their own public business, it says, leading invariably to two problems. First, the people are incapable of "regular deliberation and concerted measures." Second, the people are "continually exposed . . . to the ambitious intrigues of their executive magistrates." The combination of the people's legislative incompetence and the executive's intrigue awaits a single spark—"some favorable emergency"—to start a tyranny.¹

The Federalist’s concept of “favorable emergency”

The Federalist’s rueful oxymoron “favorable emergency” intrigues me. It recognizes that emergencies can serve as pretexts for executive power grabs. In the name of public safety, these executives curtail or cut out public liberty.

Emergencies—or more precisely, governmental responses to emergencies—don’t threaten all freedom. They seldom threaten our private liberty, our liberty to make personal choices. But they often threaten our public liberty, our freedom to create public space and to participate in activities and assemblies that involve public affairs.²

Emergency and Patrick Henry’s “liberty or death”

I’ve been fascinated by public liberty and its historically frequent incompatibility with personal safety ever since fourth-grade Virginia history. We heard then the peroration of Patrick Henry’s 1775 “Liberty or Death” speech before the Second Virginia Convention, a peroration my mother had memorized and frequently recited at home:

Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!³

Henry cites an emergency—the British military buildup and movements in Boston, which the British had occupied for years. The emergency, though, wasn’t a threat to public safety. Public safety was the status quo: compliance with British demands and general subjection to Parliament’s rule would have secured it. Instead, Henry understood the emergency as a threat to public liberty.⁴

But any big emergency can serve either to curtail or to expand public liberty. It can even presage democracy.

Emergency and democratic practice in New York

Viewed as a local disaster, the 2001 attacks on the World Trade Center were a threat to public safety. They also led to immediate mutual aid. Ironically, the attacks also led locally to greater public liberty until the authorities intervened.

During the attacks, people were frightened, of course, but they didn’t panic. They spontaneously helped one another out. Rebecca Solnit summarizes the immediate response by citizens that day:

A spontaneously assembled armada of boats conducted in a few hours an evacuation far larger than the fabled ten-day Dunkirk evacuation of the Second World War . . . Citizens on the streets aided wounded, overwhelmed, exhausted, and stranded evacuees, and concentric circles of support ringed the disaster site. Later, spontaneously assembled collection sites, commissaries, and supply chains supported the workers on what they called the Pile and the media would call Ground Zero. Many of those workers, particularly in the beginning, were also volunteers, some of them specialists—engineers, construction workers, medics, welders. Priests, ministers, rabbis, masseuses, medics, and other caregivers swarmed the site, and one of the largest disaster convergences in history transpired. Some of those who came without plans found or created useful roles and worked as part of the response for months. Many nonprofit agencies, notably those working with Muslims, immigrants, and the poor, sprang into action. Some new organizations were born.⁵

This occurrence of spontaneous mutual aid should put the reflexive arguments for expanded executive authority in an emergency into perspective. The many disasters Solnit reviews in her book A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster reveal a constant and a variable. The latter—the authorities—sometimes help in an emergency but sometimes make a bad situation worse. Overall in each disaster, however, the people act well.

Manhattan’s disaster moved from mutual aid to a fledgling democracy. Union Square became a latter-day agora, a place for locals to process the disaster, to organize help, and to debate. Solnit describes it:

It was largely a spontaneous gathering in the southernmost accessible open space in the city in those first days, but a group of young people nurtured the public life there. They didn’t make it happen or control it, but they tended it like gardeners, weeding out conflicts and invasive media, encouraging expression to bloom, providing supplies and support.⁶

Many of these young people were homeless, finally freed of the need to hustle and finally finding purpose and responsibility in their community, now in the form of this spontaneous democracy.⁷

Three and a half weeks later, though, the authorities closed down Union Square’s public space.⁸ They were intent on restoring the undemocratic status quo ante.

America’s addiction to royal prerogatives

Like most of the Founders, the Federalist essayists (James Madison, Alexander Hamilton, John Jay) look askance at democracy. But they are clear-eyed about how an executive may take advantage of their position in either a democracy or a monarchy. The same Federalist essay—Madison’s pen—that ruefully warns of “some favorable emergency” in a democracy warns also of the “numerous and extensive prerogatives” of a monarch.⁹

The new nation needed little warning about royal prerogatives. The Federalist essays were published not five years after the conclusion of a war that was fought, in part, over King George’s abuse of his prerogatives. Our Declaration of Independence lists them: “He has dissolved Representative Houses repeatedly,” for instance, and “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”

Prerogatives persist today. The British legal community still argues over their current nature and extent. Are prerogatives simply open-ended powers asserted by kings (and now prime ministers and other governmental ministers), as British constitutional theorist Albert Dicey asserts? Or do they amount to a closed list of executive actions, as the eighteenth-century British jurist William Blackstone asserts?¹⁰

One would think the British debate would have little application in the United States. The republican tradition limits executive prerogatives to emergencies.¹¹ It understands prerogatives “as a kind of safety valve for use in occasional extreme cases,” according to Professor Lawrence Cahoone.¹²

But American legal scholars debate whether the Constitution’s grant of “executive power” means more than the term’s plain as well as historical meaning — the power to execute the laws. In some circles, “executive power” approaches or equates to the British royal prerogatives castigated in the Declaration of Independence and in the Federalist.¹³ Nowhere is the “living Constitution” hermeneutic more evident or more damaging to public liberty than in our decades-long march towards a sovereign executive branch.

In an emergency, Congress abets this sovereign executive. If the president declares an emergency, that declaration makes exactly 137 statutory powers available to the president. A Congressional declaration of an emergency adds 13 more presidential powers.¹⁴

The Federalist: tyranny by emergency can’t happen here

But tyranny by emergency can’t happen under the new Constitution, the Federalist assures us. The Constitution creates a republic, not a democracy or a monarchy. The Constitution’s “executive magistracy is carefully limited, both in the extent and the duration of its power.”¹⁵ The Constitution’s small number of provisions that cover arguably “extreme cases” seem to bear the Federalist out. A president may appoint federal officials when Congress is not in session, and they may suspend writs of habeas corpus “in Cases of Rebellion or Invasion,” but that’s about it.¹⁶ The Constitution even strips the president of a significant traditional royal prerogative, giving Congress sole power to declare war. These specific exceptions to the Constitution’s laconic description of presidential power suggest that the Framers intended Congress, not the presidency, to be the governmental branch more equal than others—as the Federalist also suggests.

But “favorable emergencies” happen in republics, too. A fire in the Weimar Republic’s lower legislative house in 1933 gave the Nazis an opening. The Reichstag Fire Decree allowed the Nazis to suspend the Weimar Republic constitution's civil rights. The decree, under its terms, was in force “until further notice.” No further notice ever came.

Schmitt: sovereigns decide on emergencies

The Nazi decree had philosophical backing. The philosopher Carl Schmitt had argued a decade earlier that the “sovereign is he who decides on the exception.”¹⁷ Schmitt’s sovereign, in other words, not only acts in an emergency but also decides when an emergency exists. Schmitt thereby made the exception the source of rule.

History warns us that emergencies can make executives sovereign. Schmitt inverts history: for him, the sovereigns declare the emergencies. That’s how you know they’re sovereign.

Benjamin: sovereigns are the emergencies

But German philosopher Walter Benjamin, in turn, inverts Schmitt. For him, sovereigns are the emergencies:

The tradition of the oppressed teaches us that the “state of emergency” in which we live is not the exception but the rule.¹⁸

For the oppressed—the victims of earthly sovereignty, according to the Hebrew prophets—there is neither safety nor political freedom.

Paul on Roman claims of safety and public freedom

Henry’s famous “peace, peace, but there is no peace” implicates his audience through the quote’s context in the prophet Jeremiah:

[The prophets and priests] have healed also the hurt of the daughter of my people slightly, saying, Peace, peace; when there is no peace.¹⁹

Henry’s propitiating fellow leaders are like Jeremiah’s priests and court prophets. Except for Jeremiah’s superior turn of phrase, Henry might instead have considered quoting Paul, who, after all, was addressing another empire’s strong-armed offer of peace and safety:

For when they shall say, Peace and safety; then sudden destruction cometh upon them, as travail upon a woman with child; and they shall not escape.²⁰

This sheer-veiled, apocalyptic warning to the assembly at Thessalonica about the Roman Empire’s promise of peace and safety mirrors Henry’s warning about the British Empire’s promises of peace earlier in his speech.

Paul warned a second assembly in northern Greece about Rome’s claim to salvation (safety) as well as Rome’s path to citizenship (public liberty). Theologian and historian N. T. Wright provides the Philippian background:

. . . Philippi had been the site of one of the key battles in the civil war from which Augustus had eventually emerged as the winner. Augustus had claimed to bring peace and prosperity to the whole Roman world, rescuing it from its apparent slide into chaos; his accession was hailed as ‘good news’; his successors were acclaimed variously as ‘saviour’ and ‘lord’.²¹

In this context, Paul advised the Philippians to “work out your own salvation” and to walk in their heavenly citizenship.²² In so doing, Wright says, Paul challenged them to practice God’s safety and public liberty instead of accepting the Roman Empire’s blasphemous versions of them:

This talk of working at one’s own salvation has naturally sent shivers down many a protestant spine, since at first glance it appears to undermine ‘justification by faith alone’. But that is not at all what Paul is talking about. ‘Salvation’, sōtēria, was what Caesar offered to those who gave him allegiance. The Philippians, believing that Jesus was the only one at whose name every knee should bow, were faced with the task of working out, in the practical details of everyday life within Caesar’s world, what it would mean, what it would look like and feel like, to explore the sōtēria which Jesus offered instead. Paul gives them some pointers, but in a short letter he can hardly do more than provide suggestions. He is, however, confident that the one true God is at work among them, so that they will be able to understand their own variety of ‘salvation’, just as they must learn the meaning of their own variety of politeuma, ‘citizenship’.²³

The disciples in Thessalonica and Philippi were not to go to war against Rome, as the American colonies would go to war against Britain. Instead, these disciples needed to explore salvation (safety) and citizenship (public liberty) offered by the one true sovereign, the God of heaven and earth, in the context of their own alternative religious and political communities, the assemblies that Paul had established in their cities. In so doing, they would demonstrate that God’s kingdom of justice, peace, and joy had, in an incomplete but demonstrable way, come.

Gales and earthquakes from New England

Henry was prescient when he told his colleagues that “the next gale that sweeps from the north will bring to our ears the clash of resounding arms.” The Battles of Lexington and Concord, involving the Massachusetts minutemen and other militia, would be fought in less than a month.

Thomas Jefferson, one of Henry’s colleagues present at his address, described the force of another New England organization not as a gale but as an earthquake:

How powerfully did we feel the energy of this organization in the case of embargo? I felt the foundations of the government shaken under my feet by the New England townships.²⁴

During British rule, the New England townships operated as small, alternative political communities where citizens could practice their own salvation and citizenship and not depend on imperial versions of the same offered by Britain. Jefferson understood the townships’ power and, after his presidency, urged Virginia in at least seven letters to divide its counties into townships—”little republics”—of around a hundred citizens each.²⁵ The citizens’ daily practice of democracy would, he believed, be “the dawn of the salvation of the republic” that would withstand any future Caesar or Bonaparte.²⁶

Jefferson, therefore, had a very different view about democracy’s efficacy in an emergency and its ability to repulse a would-be tyrant than did his friend Madison. Madison, I think, had watched too many disaster movies, all of which seem to depict citizens as an hysterical mass, needing a sovereign hero to take charge. Jefferson was more in tune with what really happens in an emergency—unplanned citizenship and mutual aid.²⁷

We shouldn’t wait, though, for a declared emergency, much less for an evident one, to practice public liberty in small communities. Walter Benjamin and the apostle Paul were right: in this age, human sovereignty is the emergency, and emergency is the rule.

Above: the Reichstag fire of February 27, 1933. Arson caused the fire, but historians haven’t reached a consensus on who committed the arson.

The short footnotes below refer to the full citations in the earlier manuscript’s and this Substack’s bibliography. The longer footnotes refer to works not referenced in the manuscript.

1. James Madison, “Federalist No. 48,” in The Federalist Papers, by Alexander Hamilton, James Madison, and John Jay (New York, NY: Signet Classic, 2003), 305–10, 306.

2. “Public Freedom Today,” the first chapter in Dana Villa’s book Public Freedom, sets out the historical and practical differences between private freedom and public freedom (a.k.a., public liberty). Villa, Public Freedom, 1-26.

3. Colonial Williamsburg. “Give Me Liberty Or Give Me Death!,” March 3, 2020. https://www.colonialwilliamsburg.org/learn/deep-dives/give-me-liberty-or-give-me-death/.

4. Henry’s “chains and slavery” weren’t literal, of course. The literal chains and slavery were the lot of the African-Americans back at the homes of the Virginia convention’s delegates. For Henry, “chains and slavery” represented a loss of white Virginia’s public freedom. For an analysis of how African-American slavery influenced the presentation of Patriot arguments during the Revolutionary War era, see Appleby, Liberalism and Republicanism, 153-60.

5. Solnit, Paradise Built in Hell, 184-85. The entire account of the citizens immediate response to the attacks is found on pages 183-230 in her paradigm-shifting book A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster.

6. Solnit, 200.

7. Solnit, 201-202.

8. Solnit, 203.

9. Madison, 306.

10. Görgen, Nurullah. “The Nature and Problems of the Royal Prerogative in the English Legal System.” Selçuk Üniversitesi Hukuk Fakültesi Dergisi 32, no. 2 (June 28, 2024): 1061–95. https://doi.org/10.15337/suhfd.1410591. For the relative positions of Dicey and Blackstone, see pages 1064-65.

11. For an overview of the Roman Republic’s approach to emergencies, see Bonner, Robert J. “Emergency Government in Rome and Athens.” The Classical Journal 18, no. 3 (1922): 144–52. https://www.jstor.org/stable/3289221.

12. The Modern Political Tradition: Hobbes to Habermas is a lecture series by Professor Lawrence Cahoone and published by The Great Courses. The course covers prerogatives on pages 136 and 137 of the series’s booklet. Cahoone, Modern Political Tradition.

13. A good analysis of the debate is found at Kent, Andrew. “Executive Power, the Royal Prerogative, and the Founders’ Presidency.” Journal of American Constitutional History 2, no. 2 (2023). https://doi.org/10.59015/jach.XXUN8530. See also Mortenson, Julian David. “Article II Vests the Executive Power, Not the Royal Prerogative.” Columbia Law Review. Accessed January 16, 2025. https://columbialawreview.org/content/article-ii-vests-the-executive-power-not-the-royal-prerogative/.

14. For a synopsis of all 150 statutory emergency powers, see Brennan Center for Justice. “A Guide to Emergency Powers and Their Use,” June 11, 2024. https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use.

15. Madison, 306.

16. Even the habeas corpus clause, falling as it does in Article 1, arguably requires congressional approval of the writ’s suspension, or at least Congressional approval has always been obtained.

17. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press ed (Chicago: University of Chicago Press, 2005). 5.

18. Walter Benjamin, Illuminations, ed. Hannah Arendt, trans. Harry Zohn (New York: Schocken Books, 1986), 257.

19. Jeremiah 6:14 KJV.

20. 1 Thessalonians 5:3. For a discussion of how Paul’s quote relates to the Roman Empire’s claims, see Wright, Paul and the Faithfulness (Pts. 3 & 4), 1291.

21. Wright, 1292.

22. One is put in mind of the opposing sources of political salvation referenced in Psalms: “Some trust in chariots, and some in horses: but we will remember the name of the LORD our God.” Psalms 20:7 KJV.

23. Wright, 1295.

24. Thomas Jefferson, “Letter to Joseph C. Cabell; Monticello, February 2, 1816,” in Thomas Jefferson, Political Writings, by Thomas Jefferson, ed. Joyce Appleby and Terence Ball, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 1999), 202–6, 205.

25. “Little republics” in Thomas Jefferson, “Letter to John Adams; Monticello, October 28, 1823,” in Thomas Jefferson, Political Writings, by Thomas Jefferson, ed. Joyce Appleby and Terence Ball, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 1999), 185–91, 189. “Hundreds” in Thomas Jefferson, “Letter to John Tyler; Monticello, May 26, 1810,” in Thomas Jefferson, Political Writings, by Thomas Jefferson, ed. Joyce Appleby and Terence Ball, Cambridge Texts in the History of Political Thought (New York: Cambridge University Press, 1999), 182–83, 183.

26. “The dawn . . .” in Jefferson, 183. Reference to a future Caesar or Bonaparte in Jefferson, “Letter to Joseph C. Cabell (02.02.1816),” 205.

27. For a great account of the disaster movie genre and how it discounts or ignores spontaneous practices of mutual aid, see the chapter “Hobbes in Hollywood, or the Few Versus the Many” in Rebecca Solnit’s book A Paradise Built in Hell: The Extraordinary Communities that Arise in Disaster. Solnit, 120-31.