Giorgio Agamben's thesis in his books have been that the state of exception has become a common form of governance to get around constitutionalism. The most recent excuse for governing under a state of emergency has been terrorism. This subversive form of governance has not been limited to national or state governments.

Washington DC is a rather large city that is run as a city council form of government with an elected mayor and eight representatives chosen from the wards and five other elected positions. The other issues facing the DC Council is that their budgets can be vetoed by the national Congress.

The Council has been adopting emergency procedures to get legislation through council. This requires a majority of nine instead of seven, but avoids the legislation having to go through a process of public comment.

About one-fourth of the bills before the D.C. Council became law this way during the current two-year legislative session, including a package of anti-crime measures that alarmed civil rights groups and contentious legislation authorizing pricey parking garages for the new Washington Nationals baseball stadium.

At last Tuesday's meeting, legislators determined emergencies existed to pay multimillion dollar sums to mental health and developmental disabilities contractors, to authorize tax breaks and to move forward on a public-private partnership to build a controversial economic development project.

A $48,000 pay raise for the mayor and the council chairman first came to the council as emergency legislation but was withdrawn after several council members noted the lack of public scrutiny. Permanent pay raise legislation received preliminary approval last week after public hearings.

Most governments like to reserve the right to act absolutely even though it is in contradiction to democratic principles. Usually war is used as the excuse for an executive to act absolutely, commonly with the excuse of having to suspend the constitution to save it.

Often constitutional bodies will put in emergency powers so that the executive and legislative can act in an absolute manner without contradicting the constitution or law. A good example of this is the Canadian Charter of Rights and Freedoms. These are not an inalienable listing of rights as the government reserves the right to come first and act in emergency to suspend those very rights. Three sections: 2,7 and 15 can be overridden by an act of the legislature for a maximum of five years - before requiring renewal.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included

in section 2 or sections 7 to 15 of this Charter. ...

3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

There is no reason for government to have exceptions or emergency legislative powers. Government can act quickly, and gain people's agreeance on the necessary speed of action without having to resort to a state of emergency or a state of exception.

Aaron Schwartz writes that increasing transparent government will only force more of the real power and decision making into the 'emergency procedures' which are done out of the public light.

If you visit a site like GovTrack, which publishes information on what Congresspeople are up to, you find that all of Congress's votes are on inane items like declaring holidays and naming post offices. The real action is buried in obscure subchapters of innocuous-sounding bills and voted on under emergency provisions that let everything happen without public disclosure.

One of the problems with modern liberal democracy is the amount of government that is occurring in a state of exception. Emergency procedures fall under this form of governance. Sometimes, such as in Washington DC, this is taken to absurd levels.

Schwartz's argument is that focusing on increasing transparency will only force more and more governance into exception. But it is being done anyway, so I fail to see what could be worse.

Considering that a constitution I wrote included the injection of citizen auditors into the process I am in the group of constitutionally entrenching a 'keep the bastards honest' house in the political process.