A Note on The Federalist and the Supreme Court 2

Why the increase in citations, why the papers’ increasing impor¬tance and sanctity? Not simply because of an increase in the number of cases disposed of by opinion—that number declined significantly in those years. And not because of the presence of self-described “originalists” on the Court for whose views The Federalist, might have been uniquely supportive. The two most vehement “originalists” on the Court at the end of the twentieth century, Justices Clarence Thomas and Antonin Scalia, have not led in citing The Federalist, though at times Justice Scalia has relied heavily on certain papers. In the cases between 1995 and 1999, in fact, Justice John Paul Stevens cited the papers more frequently than any of his colleagues; Justices Scalia, Anthony Kennedy, and Stephen Breyer made about the same number of references. Justices David Souter, William Rehnquist, and Sandra Day O’Connor ranked in the middle, and Justices Thomas and Ruth Bader Ginsburg, representing quite opposite views, have both cited the papers only once. It is suggestive, and perhaps con¬sistent, that Thomas leads the Court overall in citations of the Anti- federalist papers (four citations, 1995-97), which he used to demon¬strate the legitimacy of the Founders’ fears of the federal govern¬ment’s power and his belief that they had not intended the central government to have as much power as it has today. (How the Antifederalists’ views explain the Constitution that was adopted over their objections has not been made clear.) Other “originalists” and justices both conservative and liberal have also made use of the Antifederalist writings, though to a lesser extent.
The protean quality of the Federalist papers and their importance as final authority on the Founders’ intent becomes dramatic in situ¬ations where justices differ on the interpretation of particular essays within the same case. A notable early example is the differing inter¬pretation of Federalist No. 38 by Justices Roger Taney and Benjamin Curtis in the 1857 Dred Scott decision. Both justices began with Madison’s defense of congressional authority to form new states, but they applied the passage differently, consistent with their con¬flicting views of slaveholders’ rights to bring slaves into territories where slavery was outlawed. In Printz v. U.S. (1997), which involved the constitutionality of handgun licensing and background checks in the Brady Act, the justices devoted much time disputing each other’s interpretation of certain Federalist papers, each claiming the support of the papers’ authority. Justice Scalia made use of several papers (Nos. 36, 45, 27, as well as an essay from “Brutus”) in his opinion for the majority. In his dissent Justice Souter placed even more importance on The Federalist, going so far as to say, “In decid¬ing these cases, which I have found closer than I had anticipated, it is The Federalist that finally determines my position. I believe that the most straightforward reading of No. 27 is authority for the Gov¬ernment’s position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45.” To this Justice O’Con¬nor replied:
Justice Souter contends that his interpretation of Federalist No. 27 is “supported by No. 44,” written by Madison, wherefore he claims that “Madison and Hamilton” together stand opposed to our view. In fact, The Federalist No. 44 quite clearly contradicts Justice Souter’s reading … Even if we agreed with Justice Souter’s reading of The Federalist No. 27, it would still seem to us most peculiar to give the view expressed in that one piece, not clearly confirmed by any other writer, the determinative weight he does. That would be crediting the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power … More specifically, it is widely recog¬nized that “The Federalist reads with a split personality” on mat¬ters of federalism … To choose Hamilton’s view, as Justice Souter would, is to turn a blind eye to the fact that it was Madison’s—not Hamilton’s—that prevailed, not only at the Constitutional Con¬vention and in popular sentiment, but in the subsequent struggle to fix the meaning of the Constitution by early congressional prac¬tice. [Citations omitted] Souter responded that he believed there was support in Madison’s No. 44 for the straightforward reading of Hamilton’s No. 27 and, so, no occasion to discount the authority of Hamilton’s views as expressed in The Federalist as somehow reflecting the weaker side of a split constitutional personality. This, indeed, should not surprise us, for one of the Court’s own author¬ities rejects the “split personality” notion of Hamilton and Madi¬son as being at odds in The Federalist, in favor of a view of all three Federalist writers as constituting a single personality notable for its integration.

Over the years, as respect for the papers’ authority has grown, shifts in the selection of and emphases on particular papers that serve the justices’ purposes have become notable, but so too has the absence of references to papers and arguments that the Federalist authors themselves believed to be fundamental. Their carefully wrought discussions of basic issues—democracy versus republican¬ism, the foundation principle of the separation of powers, the nature of political virtue, geographical extent and republican stability— have rarely been considered by the justices, while the technical pas¬sages on jurisdictional boundaries have been heavily emphasized. The first citation of Madison’s most famous theoretical contribution, No. io, on which a library of commentary has been written by twentieth-century students of political theory, appeared only in 1974—185 years after the Court first met. And the use made of it in fourteen cases between then and 2000 is a blur of offhand references, some irrelevant to the issue at hand, some inconsistent with previous citations of the same paper, almost all in support of arguments in favor of a free, unencumbered, unpreferential marketplace for rival interest groups, whether corporations or racial minorities.
Overall, for the Supreme Court justices The Federalist has never been a treatise on political theory or a masterwork on political sci¬ence, but a guide to the disposition of power in specific circum¬stances, an authority on the constitutional use of force and the constraints on the use of force in the intricate functioning of the fed¬eralist system of government in America. As these questions grew in complexity and importance in the late twentieth century, so too did the need for an authentic voice of the founding generation to guide the reasoning of the nation’s final arbiters of the legitimate use of power.

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