The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation
The Federalist Papers ill serves judicial opinion writing when cited for anything but analyzing the largest constitutional structures and their purposes - as opposed to the Constitution's details, which, although discussed, were not the main subject matter of contention between those supporting and those opposing ratification. Moreover, modern judicial craftsman cannot assume that each and every paper is free of error. They are not. Across the Papers are both minor and major errors of various sorts; thus, the Papers must be read and analyzed (as any other document must be) rather than casually cited (as if each and every Paper is free of defect) for the point under discussion. And, lastly, blithely relying on the rationales put forward by the Papers should not preclude our realizing that not only are some passages of the Constitution in deep tension, but rather, some passages are logically incoherent. Under these circumstances, all rationales put forward - those in the Papers included - are equally problematic.
This paper is largely written in a comic mode so as to be more accessible to the generalist lawyer and lay reader - the same audience to whom the Papers were originally addressed. Additionally, this paper also explores some undiscussed aspects of House and Senate contingency elections in the event of the failure of the electoral college to select a President and/or a Vice President.
[June 13, 2010]
Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601-19 (2003), available at http://works.bepress.com/seth_barrett_tillman/1/, also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=422700.