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Thursday, January 21, 2016

What Would Publius Do? He Would Not Cite Publius.

I am now in Austin, Texas, attending a conference on The Federalist Papers, enjoying 60+ degree F weather, sunny skies, and historians who know far more about Madison and Hamilton than I do. Sandy Levinson's book of essays on The Federalist is one focus of the conference; Noah Feldman's intellectual biography of Madison is another. Jack Rakove has been commenting on both. If I am lucky, I will get snowed in until Sunday.

The Federalist is, I imagine, the most frequently cited Founding Era source regarding the purposes of the Constitution's institutions. If one regards Publius as not just a polemicist but also as a political scientist, however, then such a use of The Federalist is precisely the sort of use that Publius himself (themselves?) would reject. Publius the Political Scientist made many predictions about institutional behavior that, according to Publius, had to be tested against experience. As John Ferejohn and I argue in "Publius as Political Scientist," an essay that will appear in a Cambridge collection edited by Jack Rakove and Colleen Sheehan, James Madison came to repudiate many of the specific institutional predictions about the behavior of Congress, the states, the President, and voters that he made in his role as Publius. As Madison discovered in the 1790s, Congress was weak and disorganized compared to a unitary executive; the President needed to be curbed and not bolstered; the voters would not be rallied by state politicians, allegedly closer to the people, as effectively as they were rallied by George Washington's denigrating the Democratic-Republican clubs; and, contrary to Federalist #10, majorities could not control a cabal of financiers masquerading as the People without themselves forming tightly knit partisan organization's that Federalost #10 condemns.

In repudiating his specific institutional predictions, however, Madison did not repudiate Publius' theory of human nature or collective action or values. Madison simply applied these basic premises to the new data he obtained from his struggles during the 1790s over the Bank, the Whiskey Rebellion, Jay's Treaty, the Neutrality Proclamation, and the Alien & Sedition Act. Like any good political scientist, he revised his specific institutional predictions in light of "that best oracle of wisdom, experience" (Federalist #15). The implication, I think, is that Publius would have advised us not to cite Publius -- at least, not to cite Publius as an authority for how Congress or the President or majority factions or courts were likely to behave. Which is the Least Dangerous Branch, from what source does the disease to which republics are most prone arise, and so forth -- all of these questions ought to be worked out by ourselves, through post-enactment experience, not through citations.

None of which is to say that we law profs should not attend conferences about The Federalist -- especially in warmer climates in January.

Posted by Rick Hills on January 21, 2016 at 11:23 PM | Permalink


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