Bench Memos

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The Perennial Publius, part 1


Blame Ed Whelan for giving me the idea for a recurring feature on this page (and he’s got a humdinger, which started today just below), because now I have such a notion too. This semester I’m teaching a senior-level class in which my students and I are marching through the whole of The Federalist, the series of 85 essays written in 1787-88 to urge the ratification of the Constitution. Using the whole series in a class is a rare thing, in most universities, and I’ve never done it myself as a teacher. But the essays of Publius (the nom de plume of Alexander Hamilton, James Madison, and John Jay) are such a rich trove of insights into the principles of the Constitution, and of the thinking that undergirds it, that returning to them again and again is always a rewarding experience.

Plus, as some scholar once demonstrated years ago (and it was no surprise), the Federalist essays are the most frequently cited source in Supreme Court opinions, after the Court’s own precedents themselves. How much authority to grant the hurried productions of Publius is an interesting question. But the prose is so sparkling, and the work looms so large in American consciousness as our most distinctive contribution to political science, that the temptation is always there in judicial chambers to haul out the Federalist for support. And more often than not, you’ll be on firm ground.

Today I begin a recurring feature (whose frequency will be high but possibly irregular) under the heading of “The Perennial Publius,” in which I’ll pull out a pithy remark or aphorism from The Federalist and make a brief comment on it. Maybe the point will be to pass along a handy quotation that a judge can use in an opinion—or that another officer of government can use for his own purposes. Or it will be to highlight a familiar principle of the Constitution and turn it to view from an unexpected angle. Or to point out an unnoticed or underappreciated argument made by these framers of our constitutional order. We’ll see how it goes. I won’t promise a quotation from every one of the 85 essays—but it’s impressive how many of them are quotable, and I might just hit every one after all. And I promise to keep it briefer in future, without this tedious introduction.

For starters, then, there is a sentence in Federalist No. 1 that takes on new significance for me in our present circumstances: “An enlightened zeal for the energy and efficiency of government will be stigmatized, as the off-spring of a temper fond of despotic power and hostile to the principles of liberty.”

This could well be the motto of the Bush administration in the war we have been fighting since September 2001. As Publius (Hamilton in this first essay) goes on to say, “the vigour of government is essential to the security of liberty,” and “their interests can never be separated.” There are a great many judges and members of Congress who would do their jobs better if they meditated on this insight.

Tags: Franck


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