The Publius Paradox
| Author | Adrian Vermeule |
| Date | 01 January 2019 |
| Published date | 01 January 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12386 |
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THE
MODERN LAW REVIEW
Volume 82 January 2019 No. 1
The Publius Paradox
Adrian Vermeule∗
At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton
argued ‘[e]stablish a weak gover nment and you must at times overleap the bounds. Rome was
obliged to create dictators’. Publius then expands upon this argument in several ways in the
Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’,
that warrants great attention: under particular conditions, excessive weakness of government
may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they
will be thrown off altogether when circumstances war rant. After illustrating and then analysing
this ‘Publius Paradox’, I turn briefly to its implications, the main one being that constitutional
law should be cast as a loosely-fitting garment – particularly the executive component of the
constitution and the scope of executive powers.
INTRODUCTION
Let me begin with a dictum of Alexander Hamilton’s, at the Philadelphia con-
vention assembled to draft a new Constitution. This is not the new lovable
Hamilton of the stage, but the man himself: ‘Establish a weak government and
you must at times overleap the bounds. Rome was obliged to create dictators.’1
We must remember that in Hamilton’s usage, speaking as a man educated in
the English tradition of the time, ‘gover nment’ here typically refers to the
incumbent administration, and it is not clearly specified how it would apply
in a system of separated powers with an independently elected executive; of
course such a system had not yet come into being, at the national level anyway.
Hamilton is saying, then, perhaps with respect to either government generally
or the executive in particular, that a certain dynamic war rants great atten-
tion: Where natural circumstances, not foreseen and perhaps not foreseeable in
∗Professor of Constitutional Law, Harvard Law School. Delivered as the Chorley Lecture at the
London School of Economics Law Department, 2018. Warmestthanks to Julia Black, David Kershaw,
Tom Poole, and the editors of the Modern Law Review for their hospitality,to Jack Goldsmith, John
Manning and Cass Sunstein for comments on a written draft, and to Taylor Custer for excellent
research assistance.
1 A. Hamilton, ‘Constitutional Convention. Remarks on the Necessity for a National
Government’ in H. C. Syrett (ed), The Papers of Alexander Hamilton, vol 4, January 1787–May
1788 (New York, NY: Columbia University Press, 1962) 212–213 at https://founders.archives.
gov/documents/Hamilton/01-04-02-0101. Unless otherwise stated, all URLs were last accessed
10 July 2018.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2019) 82(1) MLR 1–16
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
The Publius Paradox
advance, require it, excessive weakness of government tends to become ex-
cessive strength, by a kind of necessity of circumstances. If the bonds of con-
stitutionalism are drawn too tight, they will be thrown off altogether when
imperative need arises.
Now, I know how academics think, and I can just hear someone out there
thinking ‘what does ‘excessive’ mean?’ and so on and so forth. A moment’s
patience and I will address all questions. After illustrating and then analysing this
‘Publius Paradox,’ I will turn briefly to its implications, the main one being that
the constitution should be cast as a loosely-fitting garment – particularly the
executive component of the constitution and the scope of executive powers. I
won’t be so incautious as to try to venture examples from the history of British
constitutionalism, except insofar as American constitutionalism is an offshoot
thereof, but I hope this picture resonates with at least some of your experience.
EXAMPLES
It is always best to begin with some examples:
The Netherlands States-General
In Federalist 20, titled ‘The Insufficiency of the Present Confederation to Pre-
serve the Union’, Publius’s (Madison’s) running example involved the history
of the Netherlands, whose constitutional order was crippled by radical de-
centralisation, proliferation of checks and balances born of suspicion of the
executive, and a peculiar system of taxation in which the top-level government
was dependent upon the provinces for collection.2Asaresultitwasabyword
for weakness. ‘What are the characters which practice has stamped upon it?
Imbecility in the government; discord among the provinces; foreign influence
and indignities; a precarious existence in peace, and peculiar calamities from
war.’3
But the Netherlands was perpetually surrounded by enemies. Necessity
proved to be the mother of power. Hamstrung by the law, the States-General
and the Stadtholder, the Prince of Orange, did what was needed to provide
for the common defense and general welfare. As for taxes, ‘[i]t has more than
once happened, that the deficiencies had to be ultimately collected at the
point of the bayonet; a thing practicable, though dreadful, in a confederacy
where one of the members exceeds in force all the rest.’4More generally, ‘In
critical emergencies, the States-General are often compelled to overleap their
constitutional bounds.’5We note here an echo of Hamilton’s earlier formulation
at the Philadelphia convention.
2 J. Madison, ‘The Federalist No. 20’ in Syrett (ed), ibid, 390–395 at https://founders.archives.
gov/documents/Hamilton/01-04-02-0177 (emphasis added).
3ibid.
4ibid.
5ibid.
2C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(1) MLR 1–16
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