(5) Professors Posner and Vermeule focus on two sets of arguments familiar from first-generation scholarship: that responses to emergencies inevitably ratchet down the protections a constitution provides to civil liberties and that emergencies produce bad policies because decisionmakers are dominated by fear, producing distorted judgments both about the nature of the emergency and about the efficacy of the policies offered to deal with the emergency. Ratcheting down is indeed not inevitable, and the policies adopted in response to emergencies are not always ill-adapted to the problems presented.In what follows, I offer some primarily methodological quibbles with the way they try to establish those conclusions.They properly point out that claims about ratchets are claims that can be assessed only by careful empirical examination of "comparative politics." (11) They criticize those who purport to identify ratchets for "casual citation[s of] a few salient examples," (12) and for "extrapolat[ing] a trend from an impoverished data set containing too few observations." (13) From a methodological point of view, though, these criticisms are too facile.
Here they show that it is extremely difficult to describe the policy changes in such circumstances as "ratchets." Policy changes occur, and sometimes those changes "stick" in a ratchet-like way.Sometimes, though, the policy changes do not stick.(10) Acknowledging the difficulty of reducing culture to individuals, they note that the commitments of the social sciences as sciences are to some eventual reduction and that the cultural explanations, to the extent they are plausible, should become part of an agenda for future research.Yet, these philosophers of the social sciences also note what might be ineliminable problems with the proposed agenda.(7) Posner and Vermeule's second strategy is to sketch reasons for thinking that ratchet-like effects are unlikely or at least reasons for thinking that proponents of the thesis that such effects are likely have not made out a persuasive case.
This strategy involves seeking to identify general social processes, not restricted to the context of emergency, that would help explain decisionmaking in and after emergencies.The mechanisms for aggregating individual-level preferences are different in the two types of systems, after all, and one would expect mechanisms to affect outcomes.But, even worse, why should one treat "separation of powers systems" as a unit?An overview of my comments is that Posner and Vermeule are right to point out the weakness of the evidence offered to support claims about ratchets and fear, and right to ask for some general analytic reasons for thinking that emergencies produce particular kinds of policy response, but sometimes misdescribe what is wrong with the claims made about ratchets and fear. RATCHETS In discussing the possibility that emergencies produce ratchets in public policy, Posner and Vermeule pursue two strategies.The first involves examining what actually happens in and after emergencies.Posner and Vermeule take a methodologically individualist approach to social phenomena.