The Federalist Papers

November 4, 2005 4:48 PM

To what extent are the Federalist Papers relied on or used by US courts to interprete the Constitution?

Do you know of any cases in which the Papers have been decisive?

Btw this is not for a paper. I'm just curious and Wiki and Google are not helping much.

posted by Ugandan Discussions to law & government (8 comments total)

I don't know if you've already tried this, but I just went to findlaw.com and searched for "federalist papers" (with quotation marks) under US Supreme Court, and several pages of opinions came up in which the Federalist Papers are cited, though many seem to be just in passing.
posted by Gator at 5:05 PM on November 4, 2005

IANAL, but no L's have replied in depth yet. So until then:

ISTR a few cases from undergraduate con-law where the Federalist or records of the Constitutional Convention were cited as, basically, legislative intent. Where you'd cite the Congressional Record for the intent behind a legislative passage, you might cite the Federalist for the unamended Constitution.

It won't ever have been really "decisive" at the Supreme Court level. There's a wide body of evidence drawn from analysis of Supreme Court votes that the Justices do not, in practice, bind themselves by precedent. What appears to happen is that they cite cases and other precedent to justify, after the fact, the conclusions they prefer on policy grounds. So where the Court cites the Federalist, it was citing it to convince the reader that they were right in their decision, not to make up their own minds.
posted by ROU_Xenophobe at 5:08 PM on November 4, 2005

Federalist 27 was very important in the Printz v. US opinion, (Scalia, 1997). He relied heavily on the Federalist to determine original intent. Actually, Scalia was mostly responding to one of the dissenting opinions that says, nearly verbatim, that Federalist 27 was decisive in that case. Of course, dissents aren't law, so make of that what you will. The federalist papers can be very important in federalism and separation of powers issues, because there generally isn't a huge body of judicial precedent to pull from. Whether they should be important is another matter entirely.
posted by ohio at 5:45 PM on November 4, 2005

It is rather remarkable that very few Supreme Court decisions rely on historical data to substantiate their interpretations of provisions of the Constitution. There are only two cases of the many interpreting the Fourteenth Amendment which engaged in any detailed investigation of its history.

For the original Constitution, there is likewise a fairly limited number of cases citing its history. But recall that the Constitution that Publius was propounding did not include a Bill of Rights, and most constitutional challenges are made under its provisions. The Bill of Rights came later, after the original was ratified.
posted by megatherium at 7:14 PM on November 4, 2005

The Federalist Papers are persuasive authority.

There are two types of legal authority. Mandatory authority, as its name suggests, is binding on a court. Persuasive authority is not binding, but may be followed if "relevant and well reasoned." (As one of my textbooks describes it.)

Statutes from the court's jurisdiction are binding. For example, federal statutes are mandatory authority on all US federal courts. Decisions from higher courts in the jurisdiction are also binding. So, Ninth Circuit opinions are binding on all lower federal courts in that circuit, but a Sixth Circuit opinion would not. A Sixth Circuit opinion cited by the Ninth Circuit would be persuasive authority. Other examples of persuasive authority would be law review articles, legal encyclopedias, Black's dictionary, etc.

Persuasive authority is quite a slippery slope, particularly in a SCOTUS opinion. As you can imagine one can find persuasive authority for almost any argument.

The SCOTUS has no binding authority other than its prior decisions and federal statutes, but they can declare laws unconstitutional and overturn prior decisions. Hence, the excitement about stare decisis in the Supreme Court nominee battles. (Stare decisis is "to stand by things decided," meaning courts must follow prior decisions to ensure consitencey in the application of the law.)

Justice Kennedy in a number of recent opinions treated foreign legal authority as persuasive which got Justice Scalia quite upset. The New Yorker has a great article on Kennedy and citing foreign sources. (Sorry I'm lame and can't link the article.) It is really a new, interesting way of looking at the law. They were great opinions - Lawrence especially - very challenging to read and be tested on - but fascinating nonetheless.

I ran a search on Lexis. The Federalist Papers have been cited 38 times by the SCOTUS. Technically, the Federalist Papers should never be "decisive," but with a SCOTUS opinion the mandatory/persuasive divide starts to break down.

Probably more information than you wanted, but I'm a third year law student who should be studying for finals but is procrastinating because I just got a job.
posted by birgitte at 10:47 PM on November 4, 2005

Great answers. I am glad to see that the courts have not relied that often on the papers, which were after all a campaign device to promote constitutional ratification. Philip Kurland (The Founders' Constitution) used to call them "The Madison Avenue Papers." At one point in the Federalist Papers, Madison even directly contradicts something he had argued for in the Constitutional Convention.
posted by LarryC at 7:37 AM on November 5, 2005

A further comment. The Federalist Papers are a source of legislative history - records of debates and explanations which may be used to help to understand a definitive law, such as a statute or a constitutional provision. The Federalist Papers are unique in that they are a still-widely-available source of such information and were widely disseminated (in newspapers, one at a time, over many months) for the very purpose of explaining and arguing for the purpose of getting the Constitution ratified by the states. Hence they were nearly a pure form of propaganda.

Some judges, most notably Justice Scalia, decry the ease with which attorneys and judges cite items of legislative history in order to bolster their argument. Scalia's position is that of "textualism" - the constitutional provision or statute means what it says, in plain English, and needs no legislative history to help to explain it. Yet there are many provisions which are not clear and unambiguous on their face, and which need some assistance to be understood. Legislative history helps in that event.
posted by megatherium at 8:07 AM on November 5, 2005

To any constructionist judge who cares about original intent - they mean a lot. Antonin Scalia, for example, says he looks to them often and tells anyone who wants to understand "what the founders really meant" by this or that to "read The Federalist Papers." He also noted a survey where only 5 percent of law students had read The Federalist Papers and called that, “a catastrophe for this country.”


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posted by Independent Scholarship at 8:50 AM on November 5, 2005