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.
Dan T. Coenen,
A Rhetoric for Ratification: The Argument of The Federalist and Its Impact on Constitutional Interpretation,
56 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol56/iss2/2