Towards a Secure and Effective Emergency Powers Doctrine: A Reflection on the Dark Knight Trilogy

If we could unleash a Batman-like force to solve an emergency of either domestic or international politics, should we? This was a question that occurred to me while recently watching Christopher Nolan’s Dark Knight trilogy. Batman’s job is to save the city of Gotham, which is too corrupt to be saved by conventional means. The mob has such a stranglehold on the city that the typical crime fighting institutions cannot bring about justice. Batman decides that in the fight for justice, extrajudicial means are necessary. Acting as a vigilante, he circumvents police authority in order to protect Gotham’s citizens and deliver justice.

This brand of vigilante justice is typically considered ill-advised and dangerous for real-life society. This is because society relies on a set of rules that are necessary to keep order. We accept these rules because, in return, we are given the protection that comes with being a part of society. As John Locke writes, one of these rules is that the executive power rests with the government.​ This means that the government alone has the power to fight and prosecute crime. If this were not the case, then society would fall apart: there would be no fair and objective system to judge people’s crimes and determine the necessary punishment for them.

However, what do we do when the system fails, like in the case of Gotham? We would call this an ​emergency situation​. An emergency situation occurs when the system that runs society is under threat. This could be because of war, economic devastation, or the system not working to accomplish what it should, like in Gotham. During these emergency situations, can a valuable principle and rule of law, like that of reserving the executive power to the government, be broken?

The United States constantly faces a manifestation of this question: when we are under threat, can we violate the Constitution? One of its framers, Alexander Hamilton, thought so. In Federalist 70, Hamilton admires how during emergencies, the Roman government gave power to a dictator until the crisis was averted (interestingly, in ​The Dark Knight​, Harvey Dent invokes this exact historical precedent of Roman history to support Batman’s quest). This dictator had the power to do whatever was necessary to save the Republic.

Hamilton’s argument has a lot theoretical reasoning to support it. Our Constitution is a fine road-map for how to govern in many situations, but it does not provide for emergency situations when the Constitution itself is under threat. Imagine an extreme hypothetical: we are in a war, and a journalist comes upon crucial strategic information. If the journalist publishes this information, the United States will lose the war, and come under the rule of another country and another constitution. If the executive uses prior restraint, he can censor this journalist and save the nation. Of course, to do this would be to undermine the freedom of the press enumerated in the First Amendment. However, most would agree that prior restraint is justified in this situation: why should we follow a constitution so much that we allow it to be destroyed? There are times when violations are necessary in order to preserve the greater order we have in our country today.

But Hamilton’s argument followed too closely can bring about dangerous results. As David Hume said: “It is seldom that liberty of any kind is lost all at once.” Our rights are usually taken one at a time until they cease to exist. And there is no better way for a government to begin taking these liberties than under the veil of emergency powers. When governments have a mandate to solve an emergency, they can easily claim broad authority to strip people of their rights. If they strip enough of these rights during the emergency, especially if they limit the freedom of the press and the right to free speech, the people may not be strong enough to get these rights reinstated after the crisis. This gives the government the ability to overpower the citizen, and instate a full-on dictatorship.

So, where does this leave us? It is safe to say that there are situations where a constitution must be violated in order to save it. After the Civil War, Abraham Lincoln justified the extraordinary measures he employed to win the war, such as calling up state militias, spending unappropriated funds, suspending habeas corpus, imposing martial law in Maryland, and blockading southern ports, by asking: “Was it possible to win the war and preserve the constitution?” Essentially, our Constitution is of no use if our nation does not exist; therefore, if faced with a choice between saving the nation and following the Constitution, we must save the nation. And yet allowing these violations in times of crisis raises the possibility of a country slipping into a dictatorship. In Stalinist Russia​, Joseph Stalin claimed that the Soviet Union needed to industrialize in order to achieve the Marxist paradise they wanted. Not being industrialized was an emergency, and “solving it” led Stalin to take millions of lives. Similarly, Adolf Hitler inherited a Germany under extraordinary economic duress.​ He proposed a radical solution: create a German empire in the East without any people he considered undesirable. While attempting to enact this “solution,” Hitler murdered millions.

So how do we preserve our nation in times of emergency while avoiding slipping into a dictatorship? To answer this, let us turn back to Batman. As I see it, Batman does not fall squarely into either of the two main ethical schools: utilitarianism and deontology. Utilitarians act in a way that will maximize happiness (i.e. something which will make the most people the most happy). Batman cannot be called a utilitarian, because he refuses to kill people even if it means furthering his goal of saving Gotham. In ​Batman Begins​, when he must kill a man in order to stop a train from reaching and exploding a building, he refuses to kill him, opting instead to let him die. This act supports the argument that Batman is a deontologist. ​Deontologists​ believe ethical action requires doing one’s duty regardless of the results. In this scene, Batman demonstrates that he believes he has a duty not to kill, but does not have one that forbids letting someone die. Yet, what distinguishes Batman from a strict deontologist is that he has a result-oriented outlook. He wants his actions to help save the city. As long as he does not violate the duty not to kill, he is comfortable doing whatever is necessary to save the city, and thus bring about the most happiness.

Instead of fitting neatly into those two ethical boxes, Batman can be considered an ethical intuitionist​: he believes that the correct ethical action can be determined by following the ethical faculty that human beings have. Ethical intuitionism stands alone compared to utilitarianism and deontology. Those philosophies are generally coherentist​, meaning all ethical actions must fit into a logically coherent system of belief. At first glance, coherentism seems obviously correct: how can you be acting ethically if your actions contradict each other?  But ethical considerations are more complicated than they seem: there are always countless factors in each ethical scenario that cannot possibly be all placed into an ethical formula. Peter Singer argues that under utilitarian doctrine, we should donate all of our money in excess of $30,000 a year to charity. But how do we know that this will fill the utilitarian criteria of making the most people the most happy? We would need to have knowledge of what each person’s money would have been used for if it did not go to charity, where exactly the money that went to charity is going, how much different amounts of money mean to different people, and the effect such extraordinary donations would have on the market system that allocates goods and services. Deontology runs into similar problems. Under the Kantian model of deontology, you place an action into the categorical imperative in order to see if it is right or wrong. You can determine that simple actions like stealing and lying are wrong, but in real life, people do not steal or lie in a vacuum. The categorical imperative fails to contend with real life actions. What about lying to a Nazi to save an innocent family from being murdered, in a situation in which lying would certainly save that family? Try plugging that into the categorical imperative.

Ethical intuitionism avoids these problems inherent to coherentist ethical philosophies. Importantly, it allows us to avoid certain odd conclusions necessary in coherentism. For example, utilitarianism would seemingly require a doctor to cut up a healthy patient and distribute his organs to all the unhealthy patients he could save with these organs. Deontology, on the other hand, forces us to stick so strongly to a set of ideals that we run into trouble in practice. Most deontologists believe strongly that we have a duty not to kill innocents. Taken to its conclusion, this would mean not blowing up a train that has an individual on it that will infect a city’s entire population with a lethal virus. Both the doctor redistributing organs and not blowing up the train seem wrong to the human brain. One could argue that these two systems do not make up the entirety of coherentist ethical thought, but I would be hard pressed to think of any coherentist ethical system that does not have uncomfortable conclusions like the ones discussed above.

If we are forced into a coherentist system, we will have to believe a certain action is right that does not seem right to us. This is not the case under ethical intuitionism. Ethical intuitionists believe that judging any action on its ethical merits is too complicated to be distilled in a formula. Instead, it is best done by human beings who have an ethical faculty that tells them what is right and what is wrong. This is what Batman does. He feels a need to save the city, but creates his own constraints on what is acceptable and what is not in accomplishing his goal.

We should mirror this in our political philosophy, particularly when it comes to emergency situations. We should attempt to create a kind of political intuitionism. As Friedrich Hayek writes​, it is ultimately the values of the people that most effectively constrain the government. People lose their liberty when they give too much power to the government. This can occur either by electing leaders who plan to expand the role of the government, not resisting infringements when they do occur, or a combination of the both. Hayek believes, even in a non-democratic society, that the opinion of the citizenry drives governmental action, as long as the people have accurate information about these actions. This is because the government is nothing without the support of the people. The people always have the option to vote in a democratic society or revolt in an authoritarian one, no matter how unsuccessful either of those actions may be. The result of this is that if the opinion of the public shifts towards accepting more power in the government, the government will have nothing in its way if it wants to establish a totalitarian dictatorship. We have seen this in Germany and Russia, and we have even more recently seen it in Venezuela. But accepting Hayek’s point leads to a difficult question: how are the people supposed to constrain the government in emergency situations? Is it not the job of the Constitution, a compact which the people agreed to, to do this? As Hayek explains, a constitution can only do so much to prevent tyranny. It is a written document. If the people allow it to be infringed or broken, it will be.

That is why, in emergency situations, when action beyond the scope of the Constitution is necessary, it is the people who should decide what kind of infringements are acceptable. They must make this decision carefully. The people must grant the government enough power to resolve the emergency, without crossing the line into giving them too much power. In solving this problem, people should not use a coherentist political philosophy. They should instead use their political intuition. Naysayers will argue that people’s intuitions cannot be trusted, or that different people will have different intuitions, and thus no consensus about right or wrong will be reached. I disagree. Several examples can demonstrate that people will typically have similar intuitions and that these intuitions are better than a coherentist philosophy.

Here is scenario one: in light of evidence that a terrorist attack will occur imminently in a major city and will be carried out with a specific weapon that will enter the city later that day, the President sends military personnel to search anyone entering the city on that day. Here is scenario two: given evidence that a terrorist attack will occur somewhere in the United States in the next month, the President issues an order calling for the detention of all Muslim citizens. I believe nearly everyone’s reaction would be that example one is an acceptable action and example two is an unacceptable action. Why? A coherentist could explain this by tailoring a formula around these examples. For example, we can infringe upon rights when we know where the attack will take place, or we can infringe upon search and seizure but not target specific religious groups.  Both these are decent explanations, but both can be broken with one example: we know that an attack is planned to take place in the state of Maryland, sometime during the next year. Can we search everyone’s car who enters the beltway until the attack takes place? We know the location and we are only breaking the right against search and seizure, but this one seems wrong. The coherentist could add duration to his maxim, saying that you can only violate rights when an attack is imminent. But can we even temporarily detain people, even if an attack is imminent? Again, this feels wrong.

The coherentist can keep adding qualifications to his formula with each uncomfortable example, but this process will never end. Any formula will have an example to break it. We must come to accept that a coherentist political philosophy cannot negotiate emergency situations. Following one puts us at risk, because we may choose to act based on a formula even if the action feels wrong. A fine-tuned political intuition is the better bet to preserve a nation in emergency without risking dictatorship.

Let us now revisit the question that started this article: If we could unleash a Batman-like force to solve an emergency of either domestic or international politics, should we? Certainly, yes. Batman would do what is necessary to solve the emergency, while not allowing himself to act in a way that is too extreme, or counter to his conscience. If our government acted like this, we would not have to worry about emergency situations. Our best method of making sure our government acts as similarly to Batman as possible is to follow our political intuition.

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