Duke Law Journal, Vol. 56, No. 2 (November 2006), pp. 469-543. The original version of this version of this article can be found at SSRN.

Abstract

Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist does not qualify as the sort of material that provides useful guidance. The basic difficulty is that the authors of The Federalist wrote their essays as advocacy documents for publication in local newspapers, rather than as scholarly texts designed to lay out in neutral fashion the purposes and terms of the Constitution. Building on this historical reality, analysts have properly asked why courts should view a series of editorials, churned out to help win a heated political battle, as a key modern-day source of constitutional interpretation. This Article explores the proper role of The Federalist in the search for constitutional meaning. It demonstrates that the essays were in fact sophisticated advocacy documents that wove together different styles of rhetoric designed to win over readers to the cause of ratification. This reality requires courts to approach the papers with a measure of caution. At the same time, the Article rejects the view that the campaign-literature purpose of The Federalist disqualifies it from serving as an important touchstone of constitutional interpretation. This is the case primarily because the authors of The Federalist, in conceiving and structuring their argument, focused on making a highly rational and highly comprehensive appeal to a broad and diverse audience. Against this backdrop, The Federalist should be viewed as setting forth something akin to a consensus understanding of the Constitution.