In his majority opinion in Printz v. United States, in which the Supreme Court ruled that the federal government could not compel state and local officials to perform background checks on people seeking to buy guns, Justice Antonin Scalia wrote, “Because there is no constitutional text speaking to this precise question, the answer to the…challenge must be sought in historical understanding and practice.”[1] To gain this understanding, Justice Scalia, as have hundreds of his fellow justices before and since, cited the Federalist essays. In fact, he spent six pages using the Federalist as a basis for his analysis.
What made this case unusual was that Justice David Souter, in his dissent, also relied on the same source and also spent six pages doing so. Justice Souter wrote, “In deciding these cases, which I have found closer than anticipated, it is The Federalist that finally determines my position.”[2] And so, “Both Justice Scalia’s majority opinion and Justice Souter’s dissent focused on the language of various Federalist[s] in a way that can best be described as the historical record equivalent of statutory interpretation.”[3]
Although twelve pages of exposition is unusual, use of the Federalist to buttress justices’ arguments is not, and that the eighty-five essays have been cited in reams of Supreme Court opinions is hardly a surprise. Clinton Rossiter called them “most important work in political science that has ever been written, or is likely ever to be written, in the United States. It is, indeed, the one product of the American mind that is rightly counted among the classics of political theory.”[4]
The Federalist was first cited in Calder v. Bull in 1798, and in 1821, in Cohens v. Virginia, Chief Justice Marshall wrote, “It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed.”[5]
Except that they did not, nor did they intend to.
Chief Justice Marshall notwithstanding, the Federalist essays are not even-handed discussions of Constitutional issues that “will explain the views with which it was framed,” but rather are advocacy pieces with a very definite slant and a distinctly weighted point of view. James Madison, one the principal authors, admitted as much. “The immediate object of them was to vindicate & recommend the new Constitution to the State of N. Y. whose ratification of the instrument, was doubtful, as well as important.”[6] The aim, therefore, was not truth, but persuasion.
And so, using the Federalist to demonstrate intent without further critical analysis is akin to a prosecutor blindly accepting a defendant’s proclamation of innocence while declining cross examination. While some, even most, of the testimony can be accurate, key portions may be misleading, incomplete, or even totally untrue.
The Federalist, then, is what is known in literature as an “unreliable narrator.” Unreliable does not mean definitively false. In some cases, the essays may well provide proper insight into constitutional theory or the delegates’ intent or both. But in other cases, they will not. The difficulty is determining which is which.
When Alexander Hamilton solicited Madison and John Jay to help him draft the essays, it was because the opponents of the new Constitution in New York were among the most powerful figures in the state and they were determined to prevent its ratification. One of them, likely Robert Yates, writing as “Brutus,” after the sixth century B.C. Roman consul who became one of the founders of the Roman republic, had begun to pen a series of insightful, highly persuasive essays that Hamilton recognized as a threat that must be blunted. As the National Constitution Center observed, “Brutus’s essays were so incisive that they helped spur Alexander Hamilton to organize (and co-author) The Federalist Papers in response.”[7]
The stakes could not have been higher. If New York refused to ratify the Constitution, it might inspire rejection elsewhere, and even if not, the nation would be cut in two. The product of the three authors—writing as Publius, after Publius Valerius, an eminent statesman of the Roman republic—not only helped ensure the Constitution’s ratification in New York, but were adopted as objective Constitutional truths rather than the marketing documents they were.
In Federalist 52, for example, Madison wrote, “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, therefore, to define and establish this right in the Constitution.” He added, “To have left it open for the occasional regulation of the Congress would have been improper… To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone.”[8]
Almost none of this was true. The convention did almost nothing to define the right to vote, choosing to leave it almost entirely “to the legislative discretion of the States.” States could and did exercise that power as they saw fit until after the Civil War, when the right to vote began to come under the authority of the Constitution with the enactment of the Fourteenth and Fifteenth Amendments. Until then, since there were no national standards, there were no grounds for appealing voting restrictions to the federal judiciary. Even after two amendments, however, voting rights proved ephemeral for millions of Black Americans and have remained so since.
Another example is in Federalist 68, in which Hamilton attempted to defend the Electoral College, a jerrybuilt comprise adopted in desperation during the last weeks of the Convention when no other acceptable system could be found. As Madison was to write later, “The difficulty of finding an unexceptionable process for appointing the Executive Organ of a Government such as that of the U.S. was deeply felt by the Convention; and as the final arrangement of it took place in the latter stage of the Session, it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies.”[9]
The Electoral College, which incorporated both the 3/5 slave bonus and state equality in the Senate, penalized large states with no slaves, such as New York, making it a tough sell. Hamilton, who had not been present during the debates on choosing a president and whose personal sentiments would have rejected both small state and slave state advantages, resorted to a series of distortions to defend the system.
He wrote, “The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents,” a statement that was blatantly untrue. He went on, “I…hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired. It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.”[10]
This was also false. Hamilton was granting the “people” a say in the new government to which they had been specifically denied. In fact, if state legislatures chose to appoint the electors, as all but two would in the first presidential election, and electors opted to act of their own volition, the “people” would be twice removed from the process.
Hamilton defended the appointment of unbound electors by asserting, “It was equally desirable, that the immediate election should be made by men most capable of analizing the qualities adapted to the station and acting under circumstances favourable to deliberation and to a judicious combination of all the reasons and inducements, which were proper to govern their choice.”
But that forced him to address why, if the people were to make the choice, the people were not permitted to do so directly. “It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.”
Did they indeed? It would take only a dozen years for Hamilton’s words to ring hollow, when Thomas Jefferson needed 36 ballots and some political legerdemain to allow him to gain the presidency over Aaron Burr.[11] In addition, only months after he had extolled the virtues of the “excellent” system to the people of New York, Hamilton revealed that his true feelings were quite different. In a prophetic letter to James Wilson in January 1789, he wrote, “Everybody is aware of that defect in the constitution which renders it possible that the man intended for Vice President may in fact turn up President. Everybody sees that unanimity in Adams as Vice President and a few votes insidiously withheld from Washington might substitute the former to the latter. And everybody must perceive that there is something to fear from machinations of Antifederal malignity. What in this situation is wise?”[12]
Hamilton tried even harder in Federalist 78, defending a national judiciary that promised to be extremely unpopular. Brutus had devoted fully five of his sixteen essays to the judiciary, which was only vaguely defined in Article III and would arouse vehement anti-federalist sentiment as it threatened the authority of state courts.
On January 31, 1788, Brutus’s eleventh paper claimed that the judiciary under the new Constitution would “be placed in a situation altogether unprecedented in a free country.” He wrote that judges “are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries.”[13] The effect, Brutus would warn in his fifteenth essay, published on March 20, 1788, was “that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control.”[14]
Article III, to Brutus, “vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law,” which will necessarily involve “a certain degree of latitude of explanation.” Supreme Court justices will therefore “give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.” There could be no checks and balances, he claimed, when “the opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal.”[15]
Publius, again in the person of Hamilton, did not take up the judiciary until May. To reassure the people of New York, Hamilton described a national court system far differently than had Brutus. Referring to Montesquieu, Hamilton noted, “the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.”
But weakness, if it even existed, was not impotence. Hamilton was unambiguous in his opinion that judicial oversight would protect ordinary citizens. “It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
To further deflect Brutus, Hamilton added, “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
In other words, national courts were there to protect the “people” from the legislature, something that, with foreclosures a major issue, state courts had hardly done in the past. Whether Hamilton believed this rose-colored vision is not clear, but it was surely a departure from his usual hard-headed realism, to say nothing of his distrust of ordinary citizens. His statements were also more than a little duplicitous. Not only do judges fail to consider “the will of the people” as a matter of course—the very notion goes against the most basic rule of judicial conduct—judges are supposed to interpret the law, not contort it to match public sentiment.
Continuing his glowing assessment, Hamilton added, “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature… The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
Few would argue that Hamilton’s substitution has occurred many times during the nation’s history and that it continues today. The disagreement would be in which cases the courts, especially the Supreme Court, has inappropriately injected itself into the legislative process.
Whether Hamilton misread the implications of leaving Article III indistinct or was making a transparent effort to convince a dubious public of what he did not himself believe will never be known. But his description of the Supreme Court as the “people’s” branch of government certainly seems to have been incorrect.
Brutus, however, had been prescient.
Like the Brutus essays, The Federalist consists of brilliantly written, thought provoking treatises on government. But can they, as John Marshall and countless other judges have insisted, be used to “explain the views with which the Constitution was framed?”
The answer is…maybe.
And so the question becomes, is maybe good enough?
[1] 521 U.S. 898 at 905 (1997)
[2] 521 U.S. 898 at 971 (1997)
[3] Melvyn R. Durchslag. “The Supreme Court and the Federalist Papers: Is There Less Here Than
Meets the Eye?” 14 William & Mary Bill of Rights Journal, 243 (2005)
[4] Alexander Hamilton, James Madison, John Jay. The Federalist Papers. With an introduction,
table of contents, and index of ideas by Clinton Rossiter. (New York: Mentor, 1961.)
[5] 19 U.S. (6 Wheat.) 264 at 418 (1821)
[6] Letter from James Madison to James K. Paulding (July 23, 1818), in 8 The Writings
of James Madison, 410, 410 (Galliard Hunt ed., 1908).
[7] https://constitutioncenter.org/the-constitution/historic-document-library/detail/brutus-essay-no-1
[8] Federalist 52. https://avalon.law.yale.edu/18th_century/fed52.asp
[9] James Madison to George Hay, August 23, 1823. Writings 9:147–55
[10] Federalist 68. https://avalon.law.yale.edu/18th_century/fed68.asp
[11] See Bruce Ackerman. Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy. Cambridge, MA: Belknap Press, 2005.
[12] The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961–79. 5:247–49
[13] Brutus XI. https://teachingamericanhistory.org/document/brutus-xi/
[14] Brutus XV. https://teachingamericanhistory.org/document/brutus-xv/
[15] Brutus XI. https://teachingamericanhistory.org/document/brutus-xi/