The Publius Paradox

Forthcoming, Modern Law Review

Harvard Public Law Working Paper No. 18-50

26 Pages Posted: 8 Aug 2018 Last revised: 8 Dec 2018

Date Written: July 23, 2018

Abstract

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued “[e]stablish a weak government 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 warrant. After illustrating and then analysing this “Publius Paradox,” I will 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.

Suggested Citation

Vermeule, Adrian, The Publius Paradox (July 23, 2018). Forthcoming, Modern Law Review; Harvard Public Law Working Paper No. 18-50. Available at SSRN: https://ssrn.com/abstract=3218332 or http://dx.doi.org/10.2139/ssrn.3218332

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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