72 Pages Posted: 8 Nov 2006
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 recent 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 themes 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.
In this article, Professor Coenen explores the proper role of The Federalist in the search for constitutional meaning. He 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, in Coenen's view, requires courts to approach the papers with a measure of caution. At the same time, Coenen 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 comprehensive appeal to a broad and diverse audience. Against this backdrop, Coenen concludes, The Federalist should be viewed as setting forth something akin to a consensus understanding of Constitution.
Keywords: Constitutional interpretation, Federalist, Legislative History
JEL Classification: K00
Suggested Citation: Suggested Citation
Coenen, Dan T., A Rhetoric for Ratification: The Argument of the Federalist and its Impact on Constitutional Interpretation. UGA Legal Studies Research Paper No. 06-010; Duke Law Journal, Vol. 56, 2007. Available at SSRN: https://ssrn.com/abstract=943412