Dueling Federalists: Supreme Court Decisions with Multiple Opinions Citing 'The Federalist,' 1986-2007
Matthew J. Festa
South Texas College of Law; U.S. Army Judge Advocate General's Legal Center and School; Rice University
Seattle University Law Review, Vol. 31, p. 75, 2007
The use of history to interpret the law remains controversial, especially when historical evidence and arguments are used in Supreme Court opinions. While more commonly associated with a conservative or originalist jurisprudence, historical sources are in fact cited often by lawyers, academics, and judges from across the ideological spectrum in support of their legal reasoning. Perhaps the single most popular source for interpreting the U.S. Constitution is the collection of essays by Hamilton, Madison, and Jay known as The Federalist; no historical source has been cited more frequently by the Justices of the Supreme Court. This Article illuminates these issues by measuring a particular phenomenon: Supreme Court cases where multiple opinions cite the same historical source, The Federalist, even though the authoring Justices disagree on the outcome of the case. I measure the frequency of such cases from the beginning of the Rehnquist Court, which is often associated with the beginning of modern normative debates over originalism. In nearly one-fifth of all cases where one Justice cites The Federalist, a dissenting or concurring Justice also cites The Federalist to express a different interpretation of historical meaning. Furthermore, both liberal and conservative Justices cite The Federalist at comparable rates. These findings challenge the notion that only one side of a legal issue, or proponents of one judicial philosophy, can or should invoke historical support such as The Federalist. They also indicate the strong appeal of historical authority to the Justices even when their opinions reach opposing or conflicting results. Further research may reveal more information about how history can be most appropriately and effectively used to interpret law.
Number of Pages in PDF File: 32
Keywords: Supreme Court, Federalist Papers
Date posted: August 5, 2007