The Real and the Pretend

In May 1798, as the Adams administration moved toward the Alien and Sedition Acts under the threat of war with France, James Madison wrote to Thomas Jefferson with a warning that has aged better than almost anything else he wrote: "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad" (Madison, 1798). Five years earlier, writing as Helvidius, he had put it more bluntly: "War is in fact the true nurse of executive aggrandizement" (Madison, 1793).

These are not the words of a man who believed fear was innocent. Madison built the Constitution on the assumption that people in power will pursue their own advantage, and he understood that emergencies are when that pursuit is easiest to disguise. The phrase that matters is real or pretended. Some dangers are real. Some are inflated. Some are invented. In every case, someone benefits from the fear, and a serious account of American democracy has to ask who.

That question is usually missing from the most hopeful story we tell about our constitutional system: the story of the pendulum.

The pendulum and its hidden actors

The story goes like this. In moments of existential fear, Congress hands sweeping power to the executive or lets the executive take it. When the fear subsides, Congress swings back. It investigates what was done, exposes abuses, and writes new limits into law. The pattern is real, and it has saved the republic more than once.

But told this way, the story has no villains, only a frightened public and a legislature that overreacts and then recovers. It treats overreach as a symptom of panic, a fever that breaks on its own. That account leaves out the most important variable. Fear does not seize power by itself. Fear creates openings, and ambition and interest move through them.

A better framework asks two questions about every crisis. First, what kind of danger was it: real, exaggerated, or manufactured? Second, who benefited from the emergency, and who benefited from its continuing? The first question keeps the analysis honest, since not every emergency power is a grab. The second keeps it from being naive.

Three swings, with motive restored

The Civil War and Reconstruction. Secession was as real as a danger gets. Abraham Lincoln suspended habeas corpus, jailed dissidents, and expanded the army before Congress acted, and Congress largely ratified his choices in the Habeas Corpus Suspension Act of 1863 (Neely, 1991). The swing back is usually told as a principled restoration of legislative power. It was also a struggle over who would control the South and the federal government. When Andrew Johnson used his office to obstruct Reconstruction and the protection of freed people, the Republican Congress overrode his vetoes, passed the Tenure of Office Act (1867) to limit his removal power, and impeached him when he defied it. Principle and interest ran together: Republicans were committed to the rights of freedpeople, and they also recognized that Black male suffrage in the South would strengthen their party's national position (Foner, 1988).

The Red Scare. Soviet espionage was real. The panic that grew around it was something else, and much of it was manufactured by people who profited politically from it. Senator Joseph McCarthy built his power on accusations he could not substantiate, beginning with his 1950 claim to hold a list of Communists in the State Department (Oshinsky, 1983). The fear made him one of the most feared men in Washington. When the Senate censured him in 1954 (S. Res. 301, 1954), it was reclaiming its own institution from one of its members. The larger reckoning came two decades later, when the Church Committee exposed years of illegal domestic spying by the CIA and FBI (U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 1976), and Congress passed the Foreign Intelligence Surveillance Act of 1978.

Vietnam and Watergate. In August 1964, the Johnson administration told Congress that North Vietnamese boats had attacked American destroyers twice in the Gulf of Tonkin. The second attack almost certainly never happened, as a National Security Agency historian later concluded in a study declassified in 2005 (Hanyok, 2001). The resolution Congress passed on that account, 88 to 2 in the Senate and unanimously in the House, became the legal basis for a decade of war (Gulf of Tonkin Resolution, 1964). Watergate, in turn, involved no panic at all. It was the use of state power to win an election and then to hide what had been done (Kutler, 1990). Congress responded with bipartisan impeachment proceedings, Nixon's resignation, and a set of structural laws: the War Powers Resolution (1973), the Congressional Budget and Impoundment Control Act (1974), and the Ethics in Government Act (1978).

In each case, the gentle story of panic and recovery is true as far as it goes. In each case it also hides someone who gained from the fear.

Three accounts of exploitation

Thinkers across the political spectrum have tried to explain what happens to power in a crisis. They agree more than they usually admit, and their disagreements are instructive.

The economic historian Robert Higgs (1987), writing from a libertarian perspective, argued that crises produce a "ratchet effect." Government power expands sharply during wars and depressions and then recedes only partially, because the emergency creates new agencies, new habits of deference, and new constituencies invested in keeping them. A familiar example is federal income tax withholding, introduced in 1943 to finance the Second World War (Current Tax Payment Act, 1943) and never reversed. In Higgs's account, the state benefits from the crisis.

The fear that crises feed the state is not only a libertarian one. Liberal critics have made the same argument about the presidency. Arthur M. Schlesinger Jr. (1973), a historian who had served in the Kennedy White House and had long championed a strong presidency, argued in The Imperial Presidency that a succession of foreign crises had drawn war-making power away from Congress and into the executive. Garry Wills (2010) traced the problem further back, arguing that the atomic bomb, with the secrecy and permanent readiness it demanded, created a standing emergency that has concentrated war power in the presidency ever since. Where Higgs sees government as a whole growing, these writers see one branch growing at the expense of the others, which is exactly the imbalance the pendulum exists to correct.

Naomi Klein (2007), writing from the left, turned the question in a different direction. Crises, she contended, are used to shrink the public sector and transfer public wealth to private hands through privatization, deregulation, and contracting, while a disoriented public cannot resist. Her cases range from Chile after 1973 to Iraq under the Coalition Provisional Authority, which opened the country's economy to foreign ownership, to New Orleans after Hurricane Katrina, where the public school system was largely rebuilt as charter schools. In Klein's account, the state is not the beneficiary but the instrument, and private interests collect the gains. She takes the method partly from Milton Friedman (1962/2002), who wrote that only a crisis, "actual or perceived," produces real change, and that what happens next depends on the ideas lying around (p. xiv).

The concern is not the left's alone: Higgs himself warned of a "military-industrial-congressional complex," and conservative critics of crony capitalism have made similar arguments about firms that profit from government.

And, these accounts have their critics. Johan Norberg (2008) of the Cato Institute argued that Klein misreads Friedman and cherry-picks her evidence, and scholars still debate how much of the twentieth-century state's growth reflects crisis rather than ordinary public demand. But all three accounts agree on the essential point: crises are exploited, not merely endured. They disagree about who does the exploiting: the state as a whole, the presidency within it, or private interests using the state as their instrument.

This disagreement is the old American tension between self-interest and social obligation, appearing inside the emergency itself. Some fear that crises feed the government; others fear that crises feed on it.

Where the power goes, and where the money goes

Placed side by side, Higgs and Klein are often describing the same events, because emergency power and private profit frequently merge.

After September 11, the federal government built a vast national security apparatus. By 2010, a Washington Post investigation found nearly two thousand private companies doing top-secret work for the government (Priest & Arkin, 2010). In Iraq and Afghanistan, contractors provided logistics, reconstruction, and armed security on an enormous scale. The bipartisan Commission on Wartime Contracting in Iraq and Afghanistan (2011), created by Congress, concluded that at least $31 billion, and possibly as much as $60 billion, had been lost to waste and fraud. Dwight Eisenhower (1961) saw this coming when he warned against the "unwarranted influence" of a military-industrial complex. His warning was not about a power-hungry president. It was about an interest in permanent threat, spread across government and industry alike.

This is why the executive-versus-Congress frame, taken alone, misses so much. The question is not only which branch holds emergency power. It is who profits from its exercise, and whether those profits create a constituency for keeping the emergency alive.

The corrections that reached the money

Congress sometimes follows the money. For example, in the mid-1930s, the Nye Committee investigated the munitions industry's profits from the First World War (Wiltz, 1963). During the Second World War, a Senate committee led by Harry Truman investigated waste and fraud in defense contracting and made Truman's national reputation (Riddle, 1964); The Commission on Wartime Contracting did similar work, circa 2008-2011.

But these investigations rarely produce a lasting structure. The great congressional corrections, the War Powers Resolution, FISA, and impoundment control, limited the executive's authority. They left largely untouched the private interests that profited from the emergencies. That may be the deepest reason the pendulum never swings all the way back. The ratchet does not turn by itself; someone is always holding it.

The blueprint, revised

When Congress has successfully reclaimed its power, it has typically followed three steps. A segment of the president's own party decides that executive overreach threatens their institution more than the original danger threatened the country. Congress uses its subpoena power and its platform to show the public what was done, moving the national conversation from fear to accountability. And Congress writes limits into law that bind the office, not just its current occupant.

The history above suggests a fourth step that has usually been missing. A full correction would also follow the money: identifying who profited from the emergency, and limiting the contracting, lobbying, and revolving-door arrangements that give private interests a stake in making emergencies last. Without that step, Congress restrains the hand holding power while leaving alone the hands that feed it.

Why the swing is harder now

Madison's wager in Federalist No. 51 was that members of Congress would defend their institution out of ambition (Hamilton et al., 1788/2003). Levinson and Pildes (2006) argued that American government now runs instead on a separation of parties, not powers. Members increasingly defend their party's president rather than their branch, and oversight becomes an opposition weapon rather than an institutional duty. The bipartisan pivot, the first step of every successful correction, becomes rare.

Money plausibly deepens the problem. Members depend on party organizations and donors to stay in office, and major donors tend to be more ideologically polarized than the voters as a whole (Bonica et al., 2013), which rewards loyalty to a side over loyalty to an institution. Where emergency spending flows to districts and industries, members may also have little interest in ending it.

The symmetry test

Every argument about executive power invites a partisan reading, so it deserves a test of consistency: would we accept these powers, and these profits, if they belonged to the side we most distrust? Crisis exploitation has never been the property of one party. Presidents of both parties have stretched emergency and war powers, and the precedents outlived every one of them. In 2008, Rahm Emanuel, about to become Barack Obama's chief of staff, remarked that a serious crisis should never go to waste (Seib, 2008). He was candid about something politicians of every persuasion practice. A critique of crisis exploitation that applies only to the other side is not a critique. It is a weapon.

Objections

Real arguments challenge this view. Alexander Hamilton wrote in Federalist No. 70 that the "energy in the executive is a leading character in the definition of good government" (Hamilton et al., 1788/2003), and some emergencies demand speed that a divided legislature cannot provide. Lincoln faced an actual rebellion, and the country might not have survived a president who waited on Congress. Private contractors sometimes deliver capacities the government cannot build quickly. And the "who benefits?" question can decay into a cynicism that sees a conspiracy behind every emergency, which is its own failure to think clearly.

These objections argue for discrimination, not dismissal. The task is to distinguish real dangers from inflated and manufactured ones, and to ask of each emergency power not only whether it was necessary, but whether it expired when the necessity did, and who fought to keep it.

Real or Pretend

Madison designed a structure because he did not trust that virtue alone could lead; he understood clearly that interests should check interests. But sometimes the structure has to correct itself, with less power shift and with some interests remaining intact. Yet, every successful swing of the pendulum happens because particular people, often from the President's own party, decide at real cost that their institution matters more than their side. And, even in those corrections, they can stop short, because they reach the power but not the profit; self-interest versus social obligation.

Ordered liberty requires both institutions and the people in power to be willing to use the virtues of both positive and negative liberty, with restraint. It also requires the honesty and integrity to ask Madison's hard questions in full: not only what danger a country faced, but whether it was real or pretended, and who was waiting to benefit when the door swung open.

A Congress that can ask these questions, and act on the answers, will find its powers where it left them. A Congress that cannot will keep discovering that the emergencies have become permanent, and that the people they were presumably meant to "protect" are paying for them.

---

The author, Dennis Stevens, Ed.D., is a writer, visual artist, educator, and U.S. Coast Guard veteran whose essays examine governance, media, and democratic life in an age of factionalism and AI. He holds a doctorate from Teachers College, Columbia University. He founded the Sempergeist Institute and HEGEMONACO, a publication on the ethics and politics of governing artificial intelligence in democratic societies, and he also created the Poewell meaning-making platform.

---

References

Bonica, A., McCarty, N., Poole, K. T., & Rosenthal, H. (2013). Why hasn’t democracy slowed rising inequality? Journal of Economic Perspectives, 27(3), 103–124.

Commission on Wartime Contracting in Iraq and Afghanistan. (2011). Transforming wartime contracting: Controlling costs, reducing risks: Final report to Congress: Findings and recommendations for legislative and policy changes.

Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (1974).

Current Tax Payment Act of 1943, ch. 120, 57 Stat. 126 (1943).

Eisenhower, D. D. (1961, January 17). Farewell radio and television address to the American people [Speech].

Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (1978).

Foner, E. (1988). Reconstruction: America’s unfinished revolution, 1863–1877. Harper & Row.

Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (1978).

Friedman, M. (2002). Capitalism and freedom (40th anniversary ed.). University of Chicago Press. (Original work published 1962)

Gulf of Tonkin Resolution, Pub. L. No. 88-408, 78 Stat. 384 (1964).

Habeas Corpus Suspension Act, ch. 81, 12 Stat. 755 (1863).

Hamilton, A., Madison, J., & Jay, J. (2003). The Federalist papers (C. Rossiter, Ed.). Signet Classics. (Original work published 1788)

Hanyok, R. J. (2000–2001, Winter/Spring). Skunks, bogies, silent hounds, and the flying fish: The Gulf of Tonkin mystery, 2–4 August 1964. Cryptologic Quarterly, 19/20(4/1). National Security Agency. (Declassified 2005)

Higgs, R. (1987). Crisis and Leviathan: Critical episodes in the growth of American government. Oxford University Press.

Klein, N. (2007). The shock doctrine: The rise of disaster capitalism. Metropolitan Books.

Kutler, S. I. (1990). The wars of Watergate: The last crisis of Richard Nixon. Knopf.

Levinson, D. J., & Pildes, R. H. (2006). Separation of parties, not powers. Harvard Law Review, 119(8), 2311–2386.

Madison, J. (1793, September 14). “Helvidius” Number 4. Gazette of the United States.

Madison, J. (1798, May 13). James Madison to Thomas Jefferson. Founders Online, National Archives.

Neely, M. E., Jr. (1991). The fate of liberty: Abraham Lincoln and civil liberties. Oxford University Press.

Norberg, J. (2008). The Klein doctrine: The rise of disaster polemics (Briefing Paper No. 102). Cato Institute.

Oshinsky, D. M. (1983). A conspiracy so immense: The world of Joe McCarthy. Free Press.

Priest, D., & Arkin, W. M. (2010, July 19). A hidden world, growing beyond control. The Washington Post.

Riddle, D. H. (1964). The Truman Committee: A study in congressional responsibility. Rutgers University Press.

S. Res. 301, 83rd Cong. (1954).

Schlesinger, A. M., Jr. (1973). The imperial presidency. Houghton Mifflin.

Seib, G. F. (2008, November 21). In crisis, opportunity for Obama. The Wall Street Journal.

Tenure of Office Act, ch. 154, 14 Stat. 430 (1867).

U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities. (1976). Final report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (S. Rep. No. 94-755).

War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973).

Wills, G. (2010). Bomb power: The modern presidency and the national security state. Penguin Press.

Wiltz, J. E. (1963). In search of peace: The Senate munitions inquiry, 1934–36. Louisiana State University Press.