Many commentators have argued that the Bush administration's response to 9/11 was driven by fear. They were never precise about what they meant, but a number of interpretations suggested themselves. (1) That members of the public panicked and demanded that the government "do something" regardless of whether a particular action was rational. (2) That members of Congress panicked and therefore acquiesced in actions by the executive that had dubious justifications. (3) That members of the executive branch panicked and adopted measures that bore no relationship to their goals. Various unpopular measures—detentions in Guantanamo Bay, harsh interrogation techniques, even the invasion of Iraq—were blamed on either a panicky government or (more commonly) a rational government taking advantage of the public's irrational fears to expand executive power. The theory, never fully articulated or explained, seemed to be that the executive's thirst for power could never be slaked; its goal to expand its authority infinitely could best be accomplished when the citizenry is frightened and unable to exercise its critical faculties and thus grateful for any evidence of government action, however implausible the case that it might accomplish something of value.

Many legal academics claimed that courts should serve as fire walls against the conflagration of fear. When the government locks someone up, the courts should realize that in many cases either government officials have panicked or are violating someone's civil liberties merely to assure frightened citizens that something is being done. For that reason, courts should treat the government's justifications with skepticism, and never ever trust the executive branch.

These arguments have not yet surfaced in the current crisis. The specter of fear is everywhere, not just on Wall Street. And the scale of the government's reaction is no less than what it was after 9/11—that is what probably scares ordinary people the most. Yet no one who believes that the government exploited fears after 9/11 to strengthen its security powers is now saying that the government is exploiting financial crisis fears in order to justify taking control of credit markets. No one who thinks that government would use fear to curtail civil liberties seems to think that government would use fear to curtail economic liberties. Why not?