A Note on The Federalist and the Supreme Court

The chronology of the Supreme Court’s citations of The Federalist is a significant commentary on the persistent relevance of the papers and the variety of purposes to which they have been put. As the numbers indicate, the greater the distance in time from the writ¬ing of the papers, the more the justices have found it useful to draw on the authority of this two-century-old commentary. In the first thirty years after the adoption of the Constitution many of the jus¬tices had themselves been members of the ratifying debates (Chief Justice John Jay had of course been one of the Federalist authors), and the papers’ role as polemical briefs was still a living memory. They were seen as political arguments, however powerful, and had no aura of sanctity. Madison himself cautioned a correspondent against using the papers indiscriminately as an authority because the writers, he said, in their desperation, had been more zealous in their argu¬ments than he would have liked. Chief Justice John Marshall, who had been active in the Virginia ratifying convention, referred to The Federalist in McCulloch v. Maryland, but only to reject the defense attor¬neys’ use of the papers. “No tribute can be paid to their [the Federal¬ist authors’] worth,” he wrote, “which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained.” The Federalist, he felt, should not be blindly followed as an authority, though when he thought the papers were applicable to his arguments, he did not hesitate to use them. Thus Hamilton’s Federal¬ist No. 31, Marshall argued, clearly proved false the accusation that the federal government could or would deprive the states of the power to tax and collect revenue. “Had the authors of those excel¬lent essays been asked, whether they contended for that construction of the constitution which would place within the reach of the states those measures which the government might adopt for the execution of its powers, no man who has read their instructive pages will hesi¬tate to admit that their answer must have been in the negative.” In the anonymous newspaper essays he later wrote to defend McCulloch Marshall again argued that many of the opponents of the decision were using the Federalist essays incorrecdy to support their cause. His own citations were presumably correct, and later he joined Justices Joseph Story and William Johnson in citations that set a precedent for the role of The Federalist in High Court opinions.
During the remainder of the nineteenth century and through the 1920s the justices cited the papers only occasionally—they appear in between three and nine cases each decade. In those years counselors pleading before the Court referred to the papers almost as frequently as the justices. The reliance of the justices on the papers differed markedly: Story (1811-45) cited the papers five times, Stephen Field (1863-87) five times, and Melville Fuller (1888-1910) six times. But Justices John Marshall Harlan (1877-1911) and Joseph McKenna (1898—1925), who had similarly long terms on the bench, cited the papers only twice and once, respectively. Throughout the nineteenth century the most frequently cited Federalist essays were No. 32 (Hamilton, on exclusive and concurrent powers of taxation: eleven citations by 1894) and No. 42 (Madison, on powers delegated to the federal government: seven citations).
In contrast to the reserve that Madison desired, the need for care¬ful evaluation that Marshall advocated, and the infrequency of the citations in the nineteenth century, twentieth-century justices have shown little restraint in using the papers to support their opinions, and increasingly as an irrefutable authority. Between 1930 and 1959 the number of cases per decade in which the justices cited The Feder¬alist doubled over those of the preceding ten decades, and the rate doubled again in the 1960s, and doubled yet again in the 1980s. And the importance of the papers in these opinions and the reverence with which they were treated grew with the number of citations. At certain points The Federalist appears to have been a deciding factor in the justices’ decisions.

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