Emergencies and political change: a reply to Tushnet.

• Author: Posner, Eric A.
• Position: Response to article by Mark V. Tushnet in this issue, p. 1581

Mark Tushnet's Response to Accommodating Emergencies (1) is charaeteristically thoughtful and sophisticated, and we have no quarrel with his main conclusions. (2) In what follows, we will confine ourselves to briefly amplifying one of Tushnet's most important themes: the idea that emergencies can enlarge the scope of the politically possible. This is clearly correct, but the harder question is what to make of it. Tushnet emphasizes that new possibilities can be bad possibilities; we wish to round out the picture by emphasizing the good that can flow from political upheaval. Emergencies can, and often have, liberated regimes from a sclerotic status quo, enabling political leaders to enact newer and more progressive laws and policies.

Tushnet usefully points out two distinct ways in which emergencies might matter. First, "they provide new information relevant to the assessment of the costs and benefits of some policies." (3) The 9/11 attacks, for example, revealed that various airline security procedures were less effective than thought because they assumed that hijackers were not willing to undertake suicide missions and not able to pilot an aircraft. The attack also revealed that superior security procedures would generate benefits far greater than earlier believed: thousands of lives saved rather than hundreds, billions of dollars of damage averted rather than millions. Mainstream support for policies that increase security at moderate cost to civil liberties may be traced to a simple recalculation of costs and benefits in light of superior information.

Second, "emergencies may matter because they alter the constraints under which deeisionmakers operate." (4) Here, Tushnet argues that the emergency alters political constraints but not necessarily the preferences or evaluations of decisionmakers, or the amount of information at their disposal. Consider again the 9/11 attacks. Prior to that attack, most decisionmakers knew that foreign terrorists posed a threat to Americans on American soil, and, although they did not anticipate the form of the 9/11 attacks, they did have equally horrific, indeed more horrific, possibilities in mind, such as the use of biological and chemical weapons, which could kill tens of thousands of people. At the same time, these decisionmakers also might have valued civil liberties less than most Americans did. Prior to 9/11, they could not implement their policy preferences because many or most Americans would not...