emergency powers, which quickly reasserted itself. In 1863, Congress authorized the President
to again suspend habeas corpus in his role as Chief Executive. The power was refined by the
Supreme Court in 1866 — the decision of the Court imposed some restrictions on Executive
action, but the power to suspend was generally affirmed in a separate opinion by the Chief
Justice. Congress made further similar adjustments over the next decade. While in each of these
variations war appears to have been the motive or vehicle for emergency powers, some questions
are in order. First, what is the relevant social fact of war, and what types of emergency activity
does it precede? Was the point of departure for the suspensions, even in the larger context of a
civil war, military crisis or a general change in the Citizen’s relation to the body politic during
wartime? These hesitations support the approach to war and to war powers we have already
articulated, and that should lead us in a somewhat different direction. Moreover, even when, as
the Executive asserts itself under the banner of emergency, initiative and energy pass into the
hands of the President, the power that results is nevertheless composite. There may be a
monolithic aspect of Executive action, but even that typically serves by indirection the
President’s own projects. Charisma produces new public pressure which edges Congress
towards cooperation. Occurring within constitutional processes, such joint operations of the
various branches may have a dictatorial edge but they are not despotic.
Indeed, the most familiar milestones in the public history of broad emergency powers in
the United States are not so much characterized by dictatorial Executive orders as by infamous
laws — from the Sedition Act of 1798 to the Espionage [“Trading with the Enemy”] and
Sedition Acts of World War I to the “McCarran Act” of 1950, with its provisions for declaration
of an “Internal Security Emergency” and “Emergency Detention.”
This suggests the complex background of fact and common sense against which I now
want to advance a more subtle genealogical version of my claim. Again, it concerns the
relationship between war and emergency powers. After the Civil War, and with lingering
memory of that devastating conflict, emergency powers shifted here and there into the
metaphorical gap that joins war to other realms of social life. They did not, however, need war
to operate. The last decades of the 19
th
century saw “an increasing tendency of society to breed
crises.” These crises become the objects of emergency power. Nowhere was this tendency more
present than in the proliferating industrial conflict which will serve as example here.
0Note that responses to such conflict were often stated in terms of “industrial peace.”
P.A. Meyers — Chapter 18 of The Position of the Citizen After September 11 — page 1
Convention