A State of Emergency

In the spring of Year 5 the river rose. That night the mayor of Apple City declared a state of emergency under the Apple City Emergency Ordinance: a curfew from 10 p.m. to 6 a.m.; Levee Street High School, which belongs to the city Education Department, requisitioned as a shelter; residents outside the levee to evacuate by a deadline. The ordinance says the emergency order is renewed by the mayor every thirty days, and the City Council may terminate it by a two-thirds majority. The power was granted to the mayor by the Council in this ordinance; the Council may also, through the procedure for making ordinances, amend or repeal the grant. The shelter has three hundred beds; about five hundred people live outside the levee.

Two weeks later the water went down. On the vegetable plot taken three years earlier for the flood levee, that stretch of levee held; the second essay wrote of that taking. The curfew was lifted in the fifth week. By summer, three months on, Levee Street High School was still requisitioned: sixty households in the shelter still had nowhere to go back to. The emergency order was still being renewed month by month, and in the third month’s renewal the box for the reason still carried the sentence from the first order: “The river is rising; residents outside the levee are in danger.” The school’s students had moved to a temporary building on the east side of the city for their classes.

Three things first. Whom it concerns: the residents outside the levee; the students and staff of Levee Street High School; the whole city’s residents, because of the curfew. Which line: the curfew, the requisition and the evacuation act on actions that may be limited; the lines of basic rights do not change because of an emergency. Baseline: everyday life before the flood.

In an emergency, judgment cannot wait for the channels to run their course. The water is rising, those outside the levee must leave that night, the shelter must open before dawn; what in ordinary times is deliberated, reviewed and questioned first cannot wait that night. But which things cannot wait? How long does the mayor’s judgment that night count for? With the water gone and the order still in force, on what does it rest? Three hundred beds for five hundred people: what of those without a bed? If the line is crossed in these days, can the word “emergency” settle the account? Institution Theory handed questions of this kind on: “Whether it can be done, and how to make the transition and attribute responsibility when it cannot, are matters that call for judgment; they are handed to specific theories of institutions, such as the Theory of Government or a theory of the firm.” On what grounds the curfew, the requisition and the evacuation may each compel is checked along the second essay’s chain; this essay writes only of tense and of inability, and issues no further license to compel.

What Holds

That night Levee Street changed. Families from outside the levee dragged their cases toward the school; the classrooms were emptied of desks and filled with beds; after ten at night no one could be in the street. An emergency changes many things. First, the reverse question: what can it not change?

The first and second oughts. The city’s own acts cross no line against anyone in its interior: the evacuated residents, those asleep in the shelter, those kept at home on curfew nights. Institution Theory says of this ought that “it does not vary with relational thickness and is not discounted under any condition”; an emergency is a condition, and the one most easily used for discounting. A shelter is a place for people to live, not a place to shut them in: sealing off someone’s exit crosses the line. With three hundred beds side by side, the city must still guard the lines between people, and the way it guards is itself the city’s act: “Guarding itself must be a limit: guarding is an act of the construct and falls under the first ought.”

The not-sealing half of the fourth ought. The evacuation limits staying outside the levee; it does not limit whom a person goes to. Whatever rules the shelter sets, they may not stop anyone moving to relatives or friends, or cut people off from their families. The fifth ought’s channel of questioning. A matter answered may be closed, but “what cannot be withdrawn is the conditions of being questioned and of explaining”; on curfew nights, at the shelter bedsides, people must be able to speak up, and someone must take it up. The ways of guaranteeing recognition-based rights. The school was requisitioned, but the students’ schooling did not stop: they moved to the temporary building across town. If schooling is an embedded position, the building may move, but the position may not be left a mere name. If an embedded position must truly be suspended in an emergency, the suspension itself must be public and open to questioning.

These the series groups together as holding to. Its holding to is wider than Institution Theory’s; upstream, only the first ought is said outright to be discounted under no condition, and carrying all of these together to the condition of emergency is a step the series takes on its own account. The ground is Institution Theory’s own division: “what is held to is the ought, not a particular structure”; that sentence concerns guarding the line, and borrowing it for these is part of the series’ own step. What an emergency changes is structure: who decides, what is done first, what is reviewed later. What it cannot change is the ought.

What May Go Faster

In ordinary times, for the city to turn a school to another use, the Education Department must propose it and the City Council resolve on it. This time it was settled by the mayor alone, overnight; the Council did not deliberate first, and what it kept was the power to terminate afterward by two-thirds, and to amend or repeal the grant through the procedure for making ordinances. An emergency changes three things. One is speed: procedure that would take its course in ordinary times is run through in a night. The second is order: act first, review later; requisitioning the school, drawing the evacuation line and declaring the curfew were all done first, and whether they were right and should go on is reviewed later. The third is a temporary division of labor: decisions made jointly by several places in ordinary times are made for a while by one; the Council moves from resolving beforehand to terminating afterward. All of these may change: “structures can change, but the three conditions cannot be withdrawn.” Review beforehand may become review afterward, and being questioned beforehand may become being questioned afterward.

“Being questioned afterward” has a point that is easily slid past. What moves to afterward is the time of review and of answer, not the time of speaking. Of the three conditions of a channel, the second is that “internal subjects can actually initiate it”; during an emergency the channel must still be possible to initiate. If a household’s luggage is searched in the shelter and their papers held, they must have somewhere to say so at the time, somewhere not decided by that officer or his superior alone; the finding may come later, the answer may come later, but speaking up cannot wait until the emergency is over. Read “being questioned afterward” as “allowed to ask only afterward,” and during the emergency there is no channel; that withdraws the three conditions rather than moving a time. Which steps may be deferred must also be explained step by step: whether the delay would defeat control over it. If a question about the evacuation line is answered only after the water has gone, the evacuation is already over; being able to receive an objection does not by itself prove that correction will come in time.

The Line Did Not Move

Now the line. On the night of the flood the houses outside the levee might take water at any moment, and whoever stayed was physically at the water’s edge. Ordinary times and that night measured the same line and found different things: the chain was not changed, the yardstick was not changed; what changed were the facts beneath it. So too the curfew, which kept the whole city off the streets at night, though most had crossed no one’s line and did not live outside the levee; on what it rests is checked along the second essay’s chain, and this essay records only its tense: it was temporary, and lifted in the fifth week.

Conversely, some facts the emergency did not change. A household’s luggage in the shelter, their papers: the flood changed nothing between these things and that household. Searching and holding them without grounds crosses the line in ordinary times and crosses it in an emergency. So three things must be kept apart. An emergency changing procedure: allowed. An emergency changing facts: the facts themselves have changed, and the line is measured as before. An emergency changing the line: not allowed. The third often appears dressed as one of the first two, “there is no time for procedure,” “things are different now,” while what is to be done is to cross a line that was there all along.

The Third Month’s Renewal

The three measures each had their own reasons, and did not lose them at the same time. The curfew answered to the water at night; once the water went down it stayed a while, and was lifted in the fifth week. The evacuation answered to the water outside the levee; when it went down, most families went home, and sixty had nowhere to go back to. The school first housed the evacuated; three months later it still housed those sixty households, and the students were still across town.

When Institution Theory treats the structures of guarding, it sets down: “A temporary structure of guarding must be re-examined after its conditions change, and is not renewed automatically on the strength of its origin”; and: “A standing protective arrangement is not judged oppression merely because it persists.” This was written within guarding the line, against crossings between people; Apple City’s curfew, evacuation and requisition guard against water, most of those they reach have crossed no one’s line, and the one taking the measures is a government holding compulsion. Subject, object and scale have all changed, and carrying the proposition to emergency powers is a step the series takes on its own account. It carries because its frame does not depend on what a measure guards against, but on two things: the measure is temporary, and it stands on a specific reason. Emergency powers have both. The War Treatise says something in the same direction: “Every post-war action is a new action, requiring a new cannot-not to be legitimate.” Carried over, the frame is four sentences: a specific reason supports a specific temporary measure; a change in the reason triggers review; continuation needs a present ground and is not renewed on its old origin; a standing protective arrangement, if it has a ground of its own, is explained separately, and is not judged a violation for being standing.

Take the four sentences to that renewal order. The reason box in the third month carries the first month’s reason. That is exactly what renewal on the strength of origin looks like: it says why the order was valid at the start, not why it must go on now. The water went down, the reason changed, and review was triggered. Review is not revocation. Return, in this series, is not a date fixed in advance; it is the conclusion when review finds no present ground: then the measure is withdrawn and what was taken is given back. Three months is a reason for review, not a threshold of expiry: not that at three months the order lapses by itself, but that, with time gone and conditions changed, someone must ask: on what grounds now?

Sixty Households

On what grounds now must be checked; it cannot be answered in advance. Sixty households still live in the school. Institution Theory says that “where an arrangement is necessary to protect particular persons, its continued existence can be a reason to continue it”; and that “continuation and dismantling are both checked against the persons protected, the task, the authority, the cost and existing commitments.” Check the five. The persons protected: sixty households with nowhere to go back to. The task: no longer sheltering from water, but housing. The authority: the emergency order’s authority was given for a flood, and whether housing still lies within it must be explained. The cost: the students in the temporary building across town. The existing commitments: to those sixty households on one side, to the students on the other. Checked through, the five may well show that housing must go on and the school may be needed a while yet. But that is another reason, which needs its own judgment by its own procedure; it cannot be carried on month after month under the name of “The river is rising.”

The levee is another matter. It is standing, and it held when the flood came; it is not oppression for being always there, and its ground was entered separately when the land was taken. Temporary and standing are kept apart: the emergency order is temporary and must be re-examined when its term runs out; if Apple City needs a standing arrangement for housing, it should be set up and explained in its own right, not made by renewing the emergency order into permanence.

The present must still be measured with the same yardstick. The city may say the school will be given back. A plan to give back in future is a plan about the future; it does not by itself prove that nothing is sealed off now. Which action is restricted for now, and which independent road of questioning and recovery remains, must be checked by the present. For the school, what is restricted for now is the use of the building, and the students’ schooling goes on across town; whether students and parents can speak up about the requisition, to a place not decided by the mayor alone, must be checked now, not on the day the school is given back. That autumn a parent did go to ask; where she got to, the sixth essay tells.

Power Theory marks a kind of intermediate state, education, administrative trusteeship and therapeutic restraint among them: “the lock is temporary and self-liquidating, with a scheduled path of return”; and it says at once: “This paper does not unfold the intermediate states; it only marks their place.” Only the direction is taken here: a temporary lock, oriented toward return. It grants no license, and does not certify any emergency measure as such a state; a scheduled path of return is a structural feature of that kind of state, and to make it a requirement would ask for more than Institution Theory’s proposition does; it is not a strong form of that proposition, and is neither taken by default nor left to the Theory of the State. The War Treatise’s point differs; it is the strong form of the same thing: the temporary structures set up in war, emergency powers among them, must all be actively dismantled afterward, their legitimacy vanishing as the war ends. With Institution Theory, the series takes the weak form, and leaves the strong to the Theory of the State.

Who Determines the Emergency

That night it was the mayor who determined there was an emergency. The ordinance lets him declare alone and renew alone; for the Council to terminate takes two-thirds, and it can also recall the grant through the procedure for making ordinances. In three months the Council neither terminated nor recalled. First the first half: the determination may be made by one position. There is no need to go round this. The water is rising, there is no waiting for several places to confer, which is exactly why an emergency is called one; to require that every sudden act first convene several parties to judge together is to require that emergencies not happen. The paper establishes a function, not a form: one position may judge first, and act first.

Now the second half. Once the determination is made and measures taken, “is the emergency still there?” becomes a question put to the party that took them: do your measures still hold now? That question cannot be settled by the one questioned alone. Institution Theory says that “the party under review may not monopolize the decision on whether a challenge exists and whether it is over”; its summary is shorter: “the party questioned may not monopolize the power to shut the door.” The same proposition has a sentence that answers the first half: “self-checking can be done, and does not replace the position of being questioned independently.” The mayor may determine for himself and review for himself; his review does not replace a review he does not monopolize. Bringing this form of sentence to the determination, confirmation, prolongation and termination of an emergency is a step the series takes on its own account.

This step must go one layer further. Once measures are taken, confirming and ending are not just review: ending must be able actually to stop the measures, and a failure to confirm must be able actually to prevent renewal. Watch only the layer of being questioned, and review goes on as usual while the effect of ending stays in the hands of the one who took the measures; the door still shuts. So confirmation and ending fall at the layer of effect; what must be checked is a road of confirmation or ending that the one who took the measures cannot block alone. This layer too is the series’ own step; the sixth essay gives its general form.

Take the two layers to Apple City. Determining: the mayor. Renewing: the mayor alone, every thirty days. Ending: the Council, by two-thirds. Recalling the grant: the Council again, by the procedure for making ordinances. The powers to end and to recall lie at another position; on paper there is no monopoly. But independence is checked by function: “Independence is functional and does not require being outside the institution; what it guards against is the party under review sealing off review of itself on its own.” That the Council did not end the order in three months does not by itself diagnose monopoly; perhaps the members checked and found a present ground. Suppose the Council’s majority belongs to the mayor’s party, and two-thirds can never be found. Party is not evidence, and the missing two-thirds does not by itself diagnose monopoly; what must be checked is whether that majority acts only on the mayor’s will. If it does, ending needs two-thirds, recall needs that majority, and review of renewal lies with the mayor alone: then there is no road within the city to confirm or end that the one who took the measures cannot block; as a structure, when the emergency ends is decided by the one who took the measures, and at the city level the requirement of non-monopoly has not been met. If it does not, a missing two-thirds is only the result of a vote in which each member judged.

With Schmitt

On who determines an emergency, Carl Schmitt gave a very direct answer. At the opening of Political Theology he defines sovereignty: the sovereign is the one who decides on the state of exception; he decides both whether an extreme emergency exists and what is to be done to remove it. As the Stanford Encyclopedia of Philosophy summarizes him (the paper has not had the original in hand, and only paraphrases), no legal norm can govern the extreme emergency in his view; whoever is in fact able to decide on the exception is sovereign; and every legal order finally stands on a decision rather than a norm. The paper draws a contrast with him from the opposite side.

First, whether it is the same question. The scale differs: Schmitt’s exception is the extreme case no norm can foresee, and the one who decides on it is a sovereign unbound by positive law; Apple City’s mayor declared the emergency under an ordinance the Council made, the ordinance gave the Council power to end it, and above the city stands the Kingdom State. That the mayor judged first that night does not make him a sovereign in Schmitt’s sense; Schmitt himself distinguishes commissarial dictatorship, acting on the sovereign’s behalf, from sovereign dictatorship, which sets out to make a new constitution, and the mayor, holding power under an ordinance by a revocable grant, is nearer the first. So the two share one question only: whether judging that there is an emergency, and judging how to deal with it, fall at one and the same position, with that decision thereafter no longer subject to constraint. How far they agree: general norms cannot contain the radical exception, which runs with the first essay’s point that rules cannot judge in anyone’s place; in an emergency a judgment must be made, and made first by one position. Where they part: Schmitt goes from “there must be a decision” to “the one who decides is bound by no material legal constraint”; the series does not take that step. That a judgment is needed does not exempt it from questioning.

The paper drafts the strongest objection for the other side: norms cannot foresee the extreme emergency; at that moment, who decides whether your norm of non-monopoly still applies? Whoever decides that is the sovereign. The reply has four parts. First, take the three apart. Schmitt’s sovereign does three things at one position: judges whether there is an emergency, judges how to deal with it, and is thereafter bound by no material legal constraint. The reason the extreme situation gives is that there is no time to wait; that is a reason for the first two to be done quickly by one position, not a reason for the third; and having no time to wait has a term, holding while the water rises and gone once it falls. Apple City’s water fell in two weeks, yet renewal was still made by one position alone; this is only a local counterexample, not a general disproof of the theory of the absolute exception. Second, where the retracing stops. “Who decides whether this norm still applies” will be pursued upward, layer after layer; the series does not let it stop at a highest decider, but at a structure: the power to shut the door is held by several places, and none monopolizes it. Schmitt presupposes that an order must be closed by a final decision; the series does not take that presupposition, and that is its normative choice; why no final judge is needed, the sixth essay says. Third, put it in place beforehand: in a limit situation, non-monopoly rests on a structure set up in advance, a position that confirms and ends emergencies, there before the emergency, whose existence, convening and agenda do not depend on the one taking the measures. Fourth, no warrant, but no writing off. Suppose a limit situation sweeps all such positions away: “This series gives no warrant for when questioning will happen, who will take it up, or how long it will last.” Then Schmitt’s description may be the fact. But fact does not settle the norm’s account: “past residue is not written off by closing off questioning”; once the channel returns, the decision that sealed off questioning must itself be questioned. In Schmitt, the decision founds the order; in this series, the decision too goes on the account. That is the series’ structural claim; the paper does not prove that non-monopoly can actually be kept in every limit situation. The absolute exception at the level of the whole state, where the state’s very survival is at issue, the series does not answer; it leaves it to the Theory of the State.

Three Hundred Beds

Three hundred beds, five hundred people. The shelter assigned beds in order of arrival, and on the first night the beds were full; of those without a bed, some went to relatives and friends, some slept on the floor in the school’s gym and corridors. Three hundred beds cannot become five hundred in a night; this is something that cannot be achieved. Whom it concerns: the two hundred or so without beds, and with them the three hundred who have them. Which line: too few beds is a supply not achieved, not in itself a crossing of the line; whether it presses on anyone’s life-substrate is checked separately, by that person’s situation. Baseline: before the evacuation order, each had a place of his own to live.

When something cannot be achieved, two things come most readily to the tongue: “We are responsible only for the three hundred who have beds”; “The shelter is operating normally.” The first shrinks the ought to the part that can be done; the second describes what could not be done as not having happened. Institution Theory blocks both: “This series grants that in practice an ought may not be achieved, and does not on that account withdraw or discount any of them”; “Lack of resources bears on how the ought is fulfilled, how the transition is made and how responsibility is attributed; it does not subtract any ought here.” The two hundred without beds are in Apple City’s interior as much as the three hundred with them; the evacuation order fell on them, and they could not avoid it; too few beds does not make them count for less. The series takes no position on whether ought implies can; it says only that inability subtracts no ought. An old man spending the night in a corridor is not the same as a family moving in with relatives, and each is checked by its own situation; however that comes out, inability itself subtracts nothing from any ought.

The transition must be explained. The shelter was opened by the city, the beds were provided by the city, and ordering by arrival was decided by the city; an institution bears the burden of explanation for what it has itself produced, and “must answer the very matter it is questioned about.” What must be explained: how many short; by what the beds were ordered, and why; where those without beds went, and whether the city knows; how the transition is arranged, and until when; who judges these things, and to whom they answer. Ordering beds by arrival is a judgment; one could order by age, by whether a household has children, by health. The series does not say which is right; it does not teach judgment; it says that ranking is itself a judgment and must be explained. Nor is explaining achieving: inability does not cancel the burden of explanation and correction, and having explained is not booked as having done it.

Responsibility is attributed separately to the construct and to persons. Institution Theory says: “the construct’s name does not shield an individual responsibility that has independent grounds, and the construct’s failure is not automatically transferred onto any one person.” Who set the number of three hundred beds, and on what grounds, is the account of the position that set it, and of Apple City as a construct; it does not fall by itself on the person assigning beds at the door. Conversely, suppose the person assigning beds turned people away while beds were still free: that is his entry, and “there were never enough beds anyway” cannot settle it for him. One more thing must be kept apart: too few beds is inability, not by itself a crossing of the line. What the next section tells is not inability.

Three Days

In the days the shelter was open, a patrol officer, without any grounds, searched one household’s luggage and held their papers, returning them only three days later. The search was afterward verified as crossing the line. The officer said afterward: “During the state of emergency, security at the shelter is our responsibility; checking is part of the job.” The City Police’s reply said: “This was the conduct of an individual officer and has nothing to do with duty arrangements under the state of emergency.” Whom it concerns: this household. Which line: the household’s command over its own belongings and papers, which the groundless search and the holding of the papers crossed. Baseline: households in the same position in the shelter, whose belongings are not searched without grounds and whose papers stay in their own hands.

The shelter is a transitional arrangement: homes cannot be returned to, so the city fills in with the school; the officer on duty there is part of the arrangement. The search and the holding of the papers are acts made within this arrangement through a position, and a crossing of the line is read under the first ought. The two statements push in two directions. The first pushes the case onto the emergency: the words “during the state of emergency” would have it fall under the emergency’s name. But the flood changed no fact between this household and its luggage and papers; the emergency did not move this line. The beds in the last section were inability; this is not; nothing that could not be done forced the officer to search this household’s luggage. An emergency can explain inability; it cannot explain a crossing of the line, and the name of emergency no more proves that compliance is within the line than the name of procedure does. How a crossing of the line in transition is booked, Institution Theory did not write, handing it to the series that carry judgment; the series answers conditionally: where a transitional act is verified as crossing the line, the name of transition does not cancel its attribution.

The conditional has its measure. First, it does not automatically name every result that falls short of a positive guarantee a violation: the two hundred without beds are inability; the students across town are a building turned to other use, with schooling not stopped; whether these touch the first or second ought is checked by their own criteria, and they are not booked as crossings of the line for falling within the same emergency. Second, it does not automatically book the construct’s responsibility to one person. Which brings us to the second statement: “the conduct of an individual officer” would put the whole case on that officer.

That officer’s account is that one search and that one holding: “the address of attribution and the actual actor do not hide each other”; “particular operations that have been established can be attributed to the person, but no permanent identity is assigned to him.” Whether he truly believed it was his duty does not change that the line was crossed: “crossing the line does not require that anyone intend it.” The City Police’s account is another entry, checked separately: who decided to send officers into the shelter; whether, when they were sent, there were rules about searches, and how they were written; whether the shelter had somewhere this household could speak up at the time and get its papers back; why three days. “Nothing to do with duty arrangements” is the department’s account, and it too must be explained, answering the very matter asked. If gaps are found, that entry lies with the City Police and with Apple City as a construct; it is not borne by one man because one man went through the luggage. The papers were returned after three days; returning them stopped an effect still running, but did not settle the account; how the three days that did happen are answered needs a ground of its own.

With Locke

Who is to judge whether a power used as occasion demands has been used rightly, Locke asked too; the Second Treatise gives prerogative a chapter. First he says why it is needed: lawmakers cannot foresee everything, and the executor of the laws has power in his hands to use for the good of society in many cases where the law gives no direction, “till the legislative can conveniently be assembled to provide for it”; a strict and rigid observance of the laws may do harm, as in not pulling down an innocent man’s house to stop a fire when the next one is burning. Then the definition: “This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative”; in a word, “prerogative is nothing but the power of doing public good without a rule.”

Then he asks “who shall be judge when this power is made a right use of.” His answer: between an executive holding such prerogative and a legislature that depends on it to be convened, there can be no judge on earth; “The people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.” By a law prior to all human law, the people have kept the last judgment to themselves, whether they have just cause to appeal to heaven; and it does not operate until the inconvenience is so great that the majority feel it.

The two ask the same thing: when the law cannot keep up or cannot foresee, who judges, and who then judges the judgment. How far they agree: the law cannot foresee everything, and a judgment must come first; where the law gives no direction, prerogative is a temporary division of labor, the executive acting first and handing back when the deliberating side can deliberate; and precedent turns into origin. Locke saw this clearly: under good princes the people did not limit their prerogative, but their successors “would draw the actions of those good rulers into precedent, and make them the standard of their prerogative”; refusing renewal on the strength of origin guards against the same thing.

They part at two points. The first is the line. Locke’s prerogative may overstep positive law but not his fundamental law: in some cases the laws themselves must give way to the executive power, “or rather to this fundamental law of nature and government,” and that fundamental law is that, as far as may be, all the members of the society are to be preserved. The series lets an emergency change the speed and order of procedure, not the line. Pulling down an innocent man’s house to stop a fire must, in this series, go back to the second essay’s chain, with the owner’s loss and remedy booked, an entry Locke’s section does not ask about; whether it crosses the line is checked stage by stage as in the second essay, and this one example does not show the two bottom lines opposed. Actions that may be limited are limited along that chain; a step that crosses the line does not become permissible because more people would be preserved. A bounded aim of preservation and a set of boundary criteria can coexist; the paper does not say that Locke would overstep his own limits to preserve the many, nor that it has refuted him.

The second is who judges. Both want a judgment not in the hands of the party under review. Locke places it outside the constitutional order, in the people, as the last step, moving only when the majority feel it; the series wants it inside, there beforehand, open to anyone inside to initiate without retaliation. In Locke’s case the legislature can be convened only through the executive, and so there is no judge on earth; reading that case, the series finds exactly the configuration it guards against: whether the party able to review can even meet lies in the hands of the party reviewed. The appeal to heaven is what is left when that channel on earth is missing. To be precise: being questioned afterward is, in this series, an ought for the construct, not a description of existing practice. Locke himself recorded that limits on prerogative were set down by the people, where they had suffered, by express laws; the express laws came afterward, and whether Apple City has such a channel, and whether it is enough, is checked against this case.

The paper drafts, on Locke’s behalf, the strongest objection: the last judgment is already the people’s; setting up a reviewing position on earth only adds another power that can end up in the executive’s hands; the reviewer can err and abuse too, and another layer to review it only moves the difficulty upward; besides, sending every occasional judgment of good rulers to review, to guard against bad ones, would only slow the very speed an emergency most needs. The reply: this channel is not a higher judge, and the reviewer, reviewed in turn, may not monopolize review of itself either; why no final judge is needed, the sixth essay says. Speed is not harmed: determination and first action may still be made by one position, and what is reviewed is confirmation, prolongation and termination, later in time. The people’s last judgment is not cancelled: whether to ask is for those inside to decide, and an open channel does not mean someone asks every time. Judgments can err, which is why they must be open to questioning; Locke’s own point about precedent shows that good judgments too are taken up by later hands as origin.

What the fifth essay has said comes to this: in an emergency, what is held to does not stop; an emergency may change the speed, order and temporary division of procedure, review and questioning may move to afterward, and the channel must still be possible to initiate during the emergency; an emergency changes the facts the line falls on, not the line; when conditions change, emergency powers are re-examined and not renewed on their origin, and what was taken is returned when review finds no present ground; an emergency may be determined by one position, but its confirmation, prolongation and termination are not monopolized by the one who took the measures; when something cannot be achieved, no ought is withdrawn or discounted, the transition must be explained, and the accounts of construct and person are kept apart; where a transitional act is verified as crossing the line, the name of transition does not cancel its attribution. That river, that school and those sixty households will be used again.