A Limited Constitution: Publius, the State of Emergency, and “One Supreme Tribunal”

What is the nature of republican power in a state of emergency? This question has shadowed much of the legal and political discourse in the United States in the aftermath of the traumatic event of 9/11 and subsequent prosecution of the war on terror. Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts argues that far from it being the case that judicial oversight of government-imposed security measures should be heightened in states of emergency, on the contrary, it is precisely at such times that they should be given the broadest latitude—even when legally suspect. This essay asks the simple question of how Publius of The Federalist Papers would have regarded the argument of Terror in the Balance.