Topic category:  Government/Politics

At the Bench Memos section of NationalReviewOnline, in connection with a discussion of pseudonymous blogging, the question of why The Federalist Papers written by Alexander Hamilton, James Madison and John Jay were issued in the name Publius was discussed by Wendy Long and Matthew J. Franck.

Wendy Long is legal counsel to the Judicial Confirmation Network. Until March 2005, she was a litigation partner in the New York office of Kirkland & Ellis LLP. A former law clerk to U.S. Supreme Court Justice Clarence Thomas and to Judge Ralph Winter of the U.S. Court of Appeals for the Second Circuit in New York, she is a graduate of Northwestern University School of Law, cum laude and Order of the Coif, where she was articles editor of the Northwestern University Law Review, and of Dartmouth College. She previously served as a press secretary in the U.S. Senate, for former U.S. Senator Bill Armstrong (R-Colo.) and former U.S. Senator Gordon Humphrey (R-N.H.).

Matthew J. Franck is professor and chairman of political science at Radford University in Virginia, where he has taught American politics, constitutional law, and political philosophy since 1989. He is the author of Against the Imperial Judiciary (1996) and co-author and co-editor (with Richard G. Stevens) of Sober As a Judge (1999), and is working on a new book on the Supreme Court’s use and abuse of language. His blog series "The Perennial Publius" was published at Bench Memos from January to May 2007.

Professor Franck commented in a Bench Memo:

"...writing under a pseudonym did not, in itself, do anyone any harm, and...such concealment 'is not necessarily a cowardly or sinister act.' As the original Publius argued in Federalist No. 1, keeping one's identity concealed can force readers to focus on the quality of your arguments, rather than on personalities. It's harder to get ad hominem about a writer you can't identify. So a pseudonym can serve a good purpose in public discourse."

"More than two centuries ago, when nearly everyone wrote political commentary under a pseudonym, there was often intense speculation about who was writing as 'Publius' or 'Brutus'..., or 'A Freeman' or 'The Federal Farmer.' While public hints were sometimes offered, a lot of this speculation was kept to private correspondence between friends. Perhaps there was a kind of 'hold fire' understanding, with neither side in major debates like the ratification of the Constitution able to foresee a lasting advantage to 'outing' someone on the other side, since one's own side might suffer the next casualty. But everyone also understood that they were using devices that were both useful and risky, and that anyone who could derive a decisive tactical advantage by exploding an adversary's cover might do so, and no one would be in a position to cry 'foul' about it—whatever the consequences to career, reputation, or personal relationships."

Mrs. Long posted the following responsive Bench Memo:

"Of course, pseudonymous blogging could (in principle) be honorable and serve a high purpose.

"If it were (in principle) like the essays of The Federalist: an apologia for a great idea, principle, or enterprise. Not a personal attack. For that, real men fought duels, and there was never a mystery whom one was shooting at.

"Hamilton, Madison, and Jay did not invoke the pseudonym Publius in order to hide as individuals from being credited with authorship, in order to help their tenure chances, or in order to avoid embarrassment at the Thanksgiving dinner table.

"Rather, their reason was precisely to the contrary: to share authorship, and indeed credit, with all the Framers of the Constitution...."

Professor Franck responded:

"Here I just want to (gently) correct Wendy Long about a historical matter. She writes:

Hamilton, Madison, and Jay did not invoke the pseudonym Publius in order to hide as individuals from being credited with authorship . . .

Rather, their reason was precisely to the contrary: to share authorship, and indeed credit, with all the Framers of the Constitution.

"I'm afraid this just isn't right. Yes, writing as 'Publius' enabled the three men to appear to be one man. But they most certainly did want to 'hide as individuals' for a number of reasons, though none of them was dishonorable. A few people knew they were writing as Publius, and some could guess at one or two of the writers' identities. But they did not want it generally known. One of the things that 'Publius' helped them conceal was the fact that two of the three men had been at the Philadelphia Convention—which could have caused some readers to dismiss their arguments as self-serving. So they didn't want to be known publicly as being numbered among the 'Framers of the Constitution' or to 'share . . . credit' with the others who had been there. The pseudonym helped in other ways too. There is no question, for instance, that James Madison would have found it very difficult to publish Federalist No. 54 under his own name.

"Writing pseudonymously was the norm in 1787-88. Usually the pseudonym concealed the identity of just one writer. Maybe this was a hangover from more dangerous revolutionary days. But it persisted in American political writing for a long time, and the purpose was always to 'hide' one's identity."

Mrs. Long regretted a word choice in a Bench Memo reply to Professor Franck: "You're right in your fuller explanation, and I didn't put it very well. I think all of the reasons we both advanced were at work in 1787. I was trying to point out that the Framers' pseudonym was deployed in part to advance the reasons for ratification of the Constitution without being tied to a particular personality . . . for the ideas to stand on their own. 'Sharing' was a bad word."

It should be noted, I believe, that (1) Alexander Hamilton probably originated the successful "Publius strategy" for urging the ratification of the Constitution because his prior "Caesar strategy" had not been effective; (2) Hamilton, a "real man," had engaged in "personal attack" pseudonymously before adopting the "Publius strategy"; and (3) perhaps Mrs. Long's choice of the word "sharing" was NOT bad.

On "Publius strategy" and Pseudonymous Personal Attack:

Broadus Mitchell, Alexander Hamilton: Youth to Maturity 1755-1788 p. 415 (1957):

"In the case of The Federalist [Hamilton] profited by early error. Hardly was the Constitution offered to the country than Governor Clinton, with the largest political following in New York, began publishing 'Cato' against it. Immediately after the first blast, Hamilton answered with his letters of 'Caesar.' He called Clinton a demagogue, a designing croaker always exclaiming 'my friends, your liberty is invaded.' But Hamilton soon say that sarcasm and argumentum ad hominem were not what the situation demanded. The 'first impressions, made [on the people] by every species of influence and artifice, were too strong to be eradicated' except by a studious effort 'to cultivate a favorable disposition in the citizens at large.'

"The result of second thought was the project of a series of newspapers essays directed 'To the People of the State of New York,' in order to secure ratification in their convention. These would discuss calmly the utility of the Union, the insufficiency of the Confederation to preserve it and the necessity of an energetic government such as was provided in the new Constitution. It would be demonstrated that the proposed plan conformed to true republican principles, being analogous, in fact, to the constitution of New York. Hamilton sent a correspondent samples of 'Cato's' (Clinton's) attacks on the new Constitution, with the reply by himself ("Caesar'), but added that 'On further consideration it was concluded to abandon this personal form and to take up the principles of the whole subject. These [papers] might with advantage be republished in your gazettes.'

"From the outset it was intended that several authors should contribute over the one signature 'Publius.' Circumstantial evidence is that Hamilton originated the scheme, He wrote the first essay, an introduction to all that followed, as also, undoubtedly, the preface to the work when it appeared in book form...."

On Sharing Credit (at p. 420):

"Hamilton's tone and method in The Federalist papers were superior to his presentation of his own plan of a Constitution in the Philadelphia convention. in the latter he was extreme and opinionated. True, he was goaded by Clinton's opposition to the project of reconstructing the government, and was induced by the hostility of Yates and Lansing to declare himself too far in the other direction, The result was a display of personal preference, in favor of centralized authority, which depended on shock for its effect. When, later in the meeting, he got down to give-and-take in debate, he was making a more definable contribution to the document that was hammered out. his final acceptance of the Constitution as the best compromise that could be achieved, and his promise to work for its adoption in spite of his own dissents, launched him into his most useful service in its behalf. His act of self-abnegation was his real triumph. Thenceforward he left off arrogance, and took on maturity."

Self-abnegation resulting in supporting the compromise that was the Constitution and ...sharing credit with his fellow Framers. As Mitchell concluded (pp. 419-20): "If [Hamilton's] essays, letters, are reports could contribute to a desired result, that was important, but he did not pride himself upon the papers themselves."

"Hamilton's definitive biography is Broadus Mitchell's meticulous Alexander Hamilton (2 vols., 1957-1962)." www.answers.com/topic/alexander-hamilton

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.