Emergency Powers and Civil Liberties

Abstract

No apology need be offered for continuing the discussion of either civil liberties or emergency powers, exhausting and exhausted as the topics may now seem to have become. The very fact that such wide interest has been aroused by the agitation conducted by defenders of civil liberties in recent months indicates a growing realization that there is something at stake here requiring careful consideration and alert watchfulness. Whether one views civil liberty as flowing from numerous aspects of a well-balanced constitutional system of government, as the present writer does, or as the special area of distinctively designated fundamentals laid out to-protect individual rights, as many of the most vocal libertarians seem to do, every person must recognize the peculiar and intimate relation subsisting between civil liberty and constitutionalism. The preservation of the liberty of the subject is the distinguishing feature of all systems properly called constitutional and marks them off quite definitely from all forms of arbitrary government, no matter how the latter may be designated politically, socially, or economically. And at the present time no one can fail to observe that the unregulated and uncontrolled exercise of emergency powers constitutes one of the most serious threats to civil liberty as long understood and that it poses a most difficult problem for the constitutionalist.It is unnecessary to enter here upon any consideration of the nature or elements of civil liberty; still less is it necessary to embark on a defence of liberty or to ask why freedom matters. Liberty has been claimed on so many grounds —religious, rational, economic, national, and ethical—and has spawned such a volume of defences, from Milton's Areopagitica to Laski's Liberty in the Modern State, that one is entitled to assume that adequate exposition has been made and the goal denned in general terms acceptable to all sharing the historic concepts of western civilization. Nevertheless, it ought to be noted that the very same sources from which libertarian doctrines emanate are also quite frequently the springs of its repression, namely, some religious dogmas, some economic doctrines, some national cults, and social gospels of various types.