Bench Memos

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The Perennial Publius, part 20


In the last of their collaborative essays, Madison and Hamilton turn in Federalist No. 20 to their final example of failed confederations, the “United Netherlands.” By historic standards of confederations, this may be one of the strongest. Yet Publius paraphrases Grotius to the effect that “nothing but the hatred of his countrymen to the house of Austria, kept them from being ruined by the vices of their constitution.”

Publius remarks further that in “critical emergencies” the Dutch confederation was “often compelled to overleap [its] constitutional bounds.” This prompts the first but by no means the last occasion when a general principle is stated along these lines: “A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety.”

That is, it is safer for a constitution to bestow ample powers on the government it calls into being than to be stingy with such powers out of an anxiety on behalf of liberty. One day the government will face an emergency in which it must act to secure the survival of the society it serves. If it does not have the constitutional authority to deal with such an exigency, it will take it—and who will say it was wrong to do so if there is a happy result? But the “usurpation” becomes a dangerous precedent:

“Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.”

On this “Presidents’ Day” (let’s not take up the subject of that awful name), it is fitting to remember, in this connection, the question asked by Abraham Lincoln: “Must a government of necessity be too strong for the liberties of its own people, or too weak to maintain its own existence?”

Publius’s answer to this question is an emphatic “no,” as it was the answer of Lincoln himself, and of the other president we celebrate today, George Washington.

(For explanation of this recurring feature, see here.)

Tags: Franck


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