After 9/11, Fear Does Not Excuse a Blank Check for Power

On the twenty‑fifth anniversary of the attacks, firefighters march in New York near the memorial where the dead of that day are remembered. We are told that at least 2,977 persons were killed; a study reports thousands more Americans dead in consequences that followed. Here, then, is no doubtful case, no obscure quarrel over trade or ceremony, but a manifest violation of the law of nature, which, as I argued in the Second Treatise, forbids any man to harm another in his life, health, liberty, or possessions. Those who planned and executed such destruction put themselves into a state of war with all mankind. Against such assailants, defensive force is not only permitted, but required.

Yet to say that rulers may justly defend their people is not to say that they may do whatever they please, so long as they speak the word “security.” Political power is a right of making laws, with penalties, only for the public good; it is held on trust, not possessed as private estate. Men are by nature free, equal, and independent, the workmanship of one Maker, sent into the world about His business. When they unite into societies and set up governments, they do not give away themselves; they consent only to so much authority as is needful to secure their lives, liberties, and estates.

A murderous attack like 9/11 therefore gives occasion for rulers to use that entrusted power vigorously, but it does not enlarge the trust itself. First, any new measure must be such as free and equal persons might reasonably have consented to in a calm state, had they foreseen such dangers. Secondly, it must be ordered by known, standing rules and be answerable to an impartial judge. Thirdly, it must be proportioned to the mischief and plainly fitted to the public safety, not to private gain or party advantage. If a proposal cannot pass these simple tests on a clear day, it ought not to slip through under the smoke of ruined buildings.

I have elsewhere allowed that there is something called prerogative: a power in the executive to act for the public good, sometimes without, even against, the letter of the law, when sudden emergencies leave no time for the usual course. Without some such latitude, rulers would watch their people perish while they searched their statute‑books. But prerogative, as I took pains to say, is not a secret title to arbitrary dominion; it is tolerated only while it evidently serves the public and remains revocable. The moment extraordinary discretion entrenches itself, and emergency becomes a permanent condition, it ceases to be prerogative and becomes naked usurpation.

Here lies the great temptation in the wake of calamities like 9/11. Fear presses men to desire that some one should take all care out of their hands, and power is never slow to accept the offer. But consider what it is to live under authorities who may watch you, confine you, or punish you on reasons they never need plainly prove, before judges they effectively choose, according to rules that shift with their convenience. This is to live once more in a state of nature with respect to those rulers, for there is no common, known law between you and them, and they are judges in their own case. However fair the name, it is arbitrary power.

Some say that in a dangerous world, citizens must expect that governments will hold wide powers in reserve, and that to question these in solemn anniversaries is ungrateful to the dead. I answer that to remember the dead rightly is to remember also why we thought their lives worth defending. They were not mere instruments of a state, but persons with property in their own persons, their labour, and the fruits of it, walking the streets of New York under a tacit assurance that public authority was ordered to their good, not they to its convenience. To honour them is to refuse a settlement in which safety is purchased by the quiet surrender of that original understanding.

If, in any country, a long train of abuses should be shown—each step enlarging discretion, hiding decision, weakening the safeguard of impartial judgment, and teaching people to live by permission where once they lived by right—then the fault would not lie with the first necessity, but with the continued consent of the governed. For when legislators or executives set up such arbitrary power, they, as I wrote in that same Second Treatise (to paraphrase myself), begin the rebellion; the people, in resisting, only appeal from force to the common Judge of all. I do not say that day has come. I say only that fear does not discharge us from watching for it.