Why was Publius Anonymous.

Fri Mar 11 09:45:42 PST 2005

It is interesting to compare this view/attitude towards anonymous political speech with the attitude reflected in all of the opinions in MacIntyre v. Ohio Elections Comm'n (1995), in which the Court struck down a ban on anonymous leafletting in a referendum campaign.  The Court acknowledged the long history of anonymous political speech (including Publius, Brutus, and the rest of Founders) as a basis for recognizing the right to speak anonymously. 

But the  Court seemed to accept the government's argument that anyone who would speak anonymously was somehow suspicious or unreliable or was a threat to engage in fraud or other wrongful speech.  The Court simply rejected that as a government interest, saying that listeners could evaluate that anonymity in judging the credibility of the message and that government need not (and cannot) be so paternalistic as to assume that listeners cannot recognize suspicious messages for themselves.  Implicit in this, of course, is the assumption that listeners would be more likely to doubt the validity of an anonymous message, rather than to use the anonymity as a reason to focus more on the substance of the message (as Calvin argues they did in the old days).

Howard M. Wasserman
FIU College of Law

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  From: Calvin Johnson 
  Sent: Friday, March 11, 2005 9:48 AM
  To: 'RJLipkin at aol.com'
  Subject: Why was Publius Anonymous. 

      The norms of the times strongly supported speaking from behind some pseudonym so that the force of arguments and not the force of personality would influence the outcome.  One "Valerius" in Virginia attacked Richard Henry Lee, for instance, for Lee's using his own name to gain influence, whereas a pseudonym would have forced Lee's readers to evaluate Lee's arguments on their logic alone: "[E]rror, though supported by dignified names, will never be adopted;" Valerius concluded, "[but] truth though it comes from a cottage, will always prevail."[1]  The norm that anonymity served respect for logic is apparently sincere, even when it is against interest.  John Jay, for example, refused his printer's entreaties to attach his name to his "Address to the People of the State of New York" to give it additional weight and sell more copies, saying that "[i]f the Reasoning in the Pamphlet . is just, it will have its Effect on candid and discerning minds - if weak & inconclusive my name can not render it otherwise."[2]  Publius wrote within that norm.  He tells the reader in his first contribution that his "motives must remain in the depository of my own breast" and he tells the reader that he has had an eye to guard against "all attempts, from whatever quarter, to influence your decisions . other than those which may result form the evidence of truth."[3]  The ratifying public was willing to defer to the wise men Washington and Franklin, so Publius was working against interest in speaking anonymously. 

              On the other hand, Madison having the cover of anonymity took advantage of it.  He posed as a New Yorker talking about slavery issue and urges New Yorkers to affirm the three-fifths clause by accomodation to the South, not telling his audience that he himself was a slaveholder. 

      There were a lot of speculations about Publius was and Madison and Hamilton were on the usual lists of usual suspects.  But nobody decoded the Orient Express  attribute that Publius was three.   A French edition in 1791 (this date is by memory and I have not checked it) identified the authors correctly, so that after that the threesome behind Publius were generally known. 

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  [1] Valerius, "To The Honorable Richard Henry Lee, member of Congress for the state of Virginia," Virginia Independent Chronicle (Jan. 23, 1788), in 8 Doc History 319 (Valerius is quoting an anonymous source because it is "applicable to our respective situations.")  Cf, Letter from James Madison to George Washington (Dec. 20, 1787), in 10 Madison Papers  (saying that Lee's objections to the Constitution were not "over formidable, . unless it should derive an influence from [his] name. , which its intrinsic merits do not entitle it to.").  See also Douglas Adair, A Note on Certain of Hamilton's Pseudonyms, 12 Wm & Mary Q. 282, 283 (3d Series 1955)(arguing that in some cases pseudonyms were just a crass device for appropriating to the author's side a positive and popular hero and to associate with one's opponents an unpopular or false alternative.)     

  [2]  Letter from John Jay to John Vaughn (June 27, 1788), quoted in Editorial note, in 17 Doc History 102.

  [3]  The Federalist No. 1, at 6 (Alexander Hamilton)(October 27, 1787)(Jacob E. Cooke, ed. 1961).

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  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
  Sent: Friday, March 11, 2005 8:16 AM
  To: CONLAWPROF at lists.ucla.edu
  Subject: Who was Publius and Why Did He Conceal His Identity?

          Two questions: (1) Why did the elite members of the founding generation resort to pen names--Publius, Brutus, Pacificus, Helvidius and so forth-- in the debates about ratification and other issues?   Was it for anonymity?  If so, did it work? If not, or if not exclusively, what were the other reasons?

          (2) Is there any literature on the influence of Rousseau on Madison, specifically concerning the idea of "the will of the community"? 
  Bobby

  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law
  Delaware

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