Ophir is correct, in principle, to emphasize the decentralized nature of the sovereign decision. But there is a very important consequence to this which he appears to underplay. Any policy adopted by a decentralized regime will naturally be more sensitive to fluctuations in power relations among the different players than one issued by a superior authority whom no one dares challenge. Thus is the power wielded by a democracy in a state of emergency largely trapped in a web of uncertainty and impermanence, and therefore incapable of achieving the stability and coherence needed to establish a durable oppressive order.

One striking example of the inherent deliquescence of the democratic state of emergency is the incarceration of Japanese Americans in internment camps during World War II. This episode, which represents a far more serious violation of human rights than what is happening today at Guantánamo Bay, constitutes one of the moral low points of American history. Following a presidential order issued by Franklin Delano Roosevelt on April 19, 1940, shortly after America entered the war, upwards of 120,000 Americans of Japanese descent—two-thirds of them American citizens by birth—were sent to ten internment camps in the Western United States. Although authorities at the time cited national security concerns as justification, it seems clear today that they were motivated to a great extent by anti-Asiatic bigotry—a racism that permeated the highest levels of the military and the Roosevelt administration.⁴⁸

This incarceration of Japanese Americans continued until the order was finally rescinded on January 2, 1945. What is especially noteworthy here is how the policy changed even though the conditions that initially allowed it were still in effect: The war in the Pacific was still raging; anti-Japanese sentiment among the American public was still rampant; the Supreme Court had upheld the constitutionality of the detention; and Roosevelt himself, who had been elected for an unprecedented fourth term, had no desire to see the camps shut down. How, then, to account for the change? From archival documents, we discover a combination of factors, including concerns in the administration that the internment was no longer necessary, that the judiciary might intervene to stop it (which it did not)⁴⁹, or that it constituted an intolerable violation of the rights of American citizens.⁵⁰ A formal admission of guilt came only four decades later, when President Ronald Reagan signed the Civil Liberties Act of 1988, granting compensation to those who had been interned in the camps, and stating explicitly that the administration’s actions against Japanese Americans were based on “racial prejudice, wartime hysteria, and a failure of political leadership.”⁵¹

The case of the Japanese-American detention shows that even a democratic government with a proud constitutional tradition is capable of exposing its own citizens to extremely abusive state power.⁵² And yet, because of the decentralized and dynamic nature of the democratic system, such a government will necessarily find it difficult to maintain a permanent state of emergency, which demands the continuous cooperation of all those organs entrusted with the security of the public and the representation of its interests.⁵³ One can understand why despots and terrorists might see this as a sign of weakness. But democracy, as we will see, has its own internal mechanisms that effectively protect it from threats that have toppled more monolithic and centralized regimes in times of crisis.

 

We have suggested that the incompatibility of the ideological and institutional structure of liberal democracies with the specific demands of the state of emergency makes it especially difficult for this type of regime—as opposed to authoritarian ones—to maintain such a state over the long term. But how, then, may we account for the remarkable ability of Western democracies to prevail in the face of all manner of military, political, economic, and social crises, triumphing over their great (and well- armed) ideological rivals in the hot and cold wars of the twentieth century? Perhaps the answer lies in the very tenuousness of the hold democracies have over their citizens: They are better suited to survive upheavals and crises precisely because they allow for a greater degree of internal disorder under normal conditions, and therefore are less likely to perceive it as a threat that demands the suspension of norms in the first place.

The democratic tolerance for disorder reveals a great deal about the difference between liberal democracies and totalitarian regimes, the latter being incapable of tolerating even minor expressions of social discord. This is because totalitarian societies are founded on a desire to institute a perfect order, one that will resolve all the tensions within the collective and recreate it as a single, united community.⁵⁴ To achieve this, the state must eliminate those who will not submit to its grand vision; and, because the totalitarian fantasy is inherently unattainable, the regime constantly seeks out individuals and groups to blame for its failure.⁵⁵ Hannah Arendt remarks in this context that the identity of the “objective opponents” singled out by the Nazis on the one hand and the Bolsheviks on the other changed according to the prevailing circumstances, “so that, as soon as one category is liquidated, war may be declared on another.”⁵⁶ These enemies—by turns Jews, communists, the bourgeois, wealthy peasants, homosexuals, intellectuals, and countless others—are placed outside the law and stripped of all legal defense against the violence of the sovereign. They are sent to hellish realms, where only brute power rules: To the gulags of the Soviet Union, the extermination camps of the Third Reich, or the killing fields of Cambodia.

Liberal democracies, on the other hand, work according to an entirely different political logic. They are not driven by a messianic desire to cure the world of its ills; and as Lefort stressed, they do not perceive their societies as collectives in need of unification. Instead they permit, even endorse, competition and disagreement—even if they thereby run the risk of undermining social solidarity and encouraging unrest. This latter concern has dogged democratic thinking from the outset, as is echoed, for example, in The Federalist. In its tenth article, James Madison discusses the danger of faction and its potential to tear the young United States apart. He describes two means of neutralizing the causes of this danger—the suppression of freedom and the promotion of unanimity—and rejects both on moral and practical grounds. “The causes of faction cannot be removed,” the author concludes. “Relief is only to be sought in the means of controlling its effects.”⁵⁷ Whereas classic constitutional theory gave unimpeded authority to the majority, at the cost of the rights of the minority and increased hostility among camps, Madison recommends, among other things, expanding the number of autonomous actors in the public arena. “Extend the sphere,” he writes, “and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”⁵⁸ The strategy outlined by Madison is based on a careful and deliberate nurturing of disorder within the system so as to keep it from tearing apart. The most effective way to prevent the anarchy of revolution or civil war, according to this line of thought, is to permit the moderate unruliness of the marketplace.

With this dynamic in mind, we can also see the advantages of civil society for a liberal-democratic order. The expression “civil society” normally refers to the totality of a nation’s organizations and voluntary activities that are not subject to the direct authority of the state, the connections of family, or the interests of the market.⁵⁹ Included in this category are religious institutions, labor unions, support groups, relief organizations, and sports clubs. Attachments in this sphere are public, and, no less important, freely chosen; as such, they also lack permanence. The identity of the actors and the interactions among them are subject to unending processes of construction and dissolution, expansion and contraction. It is a scene of restlessness, and the power relations within it are only very occasionally marked by order and stability.⁶⁰