Constitutional Interpretation: Why Judges Still Turn to Hamilton, Madison, and Jay

Why do Supreme Court justices turn to 235-year-old political essays when deciding modern cases? This riveting exploration with Dr. Sean Beienberg reveals how the Federalist Papers continue to shape constitutional interpretation centuries after their publication.

The Federalist Papers serve a dual purpose in today's legal landscape. First, they explain the Constitution's institutional design, where the document remains sparse. Dr. Beienberg notes, "They do a terrific job articulating and explaining the logic, institutional design, and purposes of those institutional arrangements." Even Alexis de Tocqueville recognized their explanatory power, often deferring to them in his analysis of American democracy.

More significantly, these essays represent what many consider the closest window to the Constitution's original understanding. This connection has fueled their comeback in judicial circles, particularly as originalism—interpreting the Constitution based on its original meaning—has resurged since the 1970s. Madison believed constitutional interpretation should focus not on drafters' private thoughts but on what ratifiers believed they were approving, making the Federalist Papers invaluable evidence of founding-era understanding.

Perhaps most fascinating is how these documents transcend today's political divides. While originalism is often associated with conservative jurisprudence, progressive icon Hugo Black was also considered a great originalist justice. This creates unexpected connections across ideological lines, with Justice Thomas sometimes citing Justice Black despite their opposing political philosophies. Even among originalists, approaches differ—Thomas prioritizes original understanding above precedent, while Scalia balanced the two—demonstrating the nuanced ways these historical texts continue to influence American law.

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Episode Transcript

Speaker 1 (00:00):
Welcome back to Civics in a Year.
Today we are kind of finishingup our Federalist Papers run
that we've had and we have DrSean Beinberg back with us.
And Dr Beinberg, our questiontoday is why is it that judges,
legal scholars, still referencethe Federalist Papers in court

(00:20):
decisions?
Because they're not governingdocuments, but there is still
references to the FederalistPapers.

Speaker 2 (00:28):
You're absolutely right that the Federalist Papers
are indeed a very frequentlycited text in a constitutional
adjudication by judges and legalscholars, and that's not to say
that they haven't been citedbefore, but this is actually
something that is increasinglyfrequent, where the Federalist
Papers are increasingly a sortof a core capstone in terms of

(00:52):
judicial interpretation in thelast few decades, whereas they'd
fallen out of favor for a while, and that largely is a
consequence of two things.
So, as we talked about before,the Federalist Papers are one
just a brilliant set ofinterpretive analyses of the
constitutional text.
That is to say they understandthe Constitution very well,

(01:12):
whereas the Constitution as agoverning document is very
sparse in many ways.
The Federalist Papers do aterrific job sort of
articulating and explaining thelogic, the institutional design,
the purposes of thoseinstitutional arrangements.
This is why, for example,alexis Tocqueville in Democracy
in America basically says infootnotes just go read the

(01:35):
Federalist Papers.
They do this better than I cando.
There are a few places whereTocqueville actually articulates
things a little more clearlythan the Federalist, I think
because in some sense notunreasonably they have certain
background assumptions in mind.
We've talked before about howthey don't really define
executive power very carefullybecause they all kind of like
look around like we know whatthe executive power looks like,
whereas Tocqueville has a littlebit more distance to then feel

(01:57):
the need to go and explain someof that.
So Democracy in America alsodoes a really good job of
explaining a lot of that as well.
So there's just an element of.
It's a very eloquentarticulation of the logic of the
Constitution.
The other reason is that theFederalist is arguably the most

(02:18):
effective or clearestarticulation of and the legal
scholars would sort of pick thisapart here with the nuances but
something akin to the originalunderstanding or the original
intent of the Constitution.
I will spare you folks thearcana of like high-level
constitutional theory, but thebasic idea of one of the main

(02:40):
canons of constitutionalinterpretation which was really
really popular and basically oneof the main canons of
constitutional interpretationwhich was really really popular
and basically one of the mainways people did constitutional
interpretation pretty muchthrough the 1930s.
It wasn't exclusively but itwas one of the mainstream
measures of doing that is,trying to understand basically
what the text was supposed to doat the time that it was written
.
How is this understood?
There's a little bit of nuancebetween whether you care more

(03:03):
about what the writers and thedrafters wrote versus the sort
of popular understanding.
But that was really what legalinterpretation did for most of
American history.
It falls off in the 1930s,through the 70s or 80s.
It gets sort of brought back,particularly under the term
originalism.
If you sort of go back and readlegal cases, they're clearly

(03:55):
articulating this sort of basicidea of like what did the
convention think that they wereratifying?
What are these words supposedto be doing?
So the term but conservativeleaning justices and judges.
There's a greater interest inoriginalism.
And if you're doing that, thenagain in the Federalist Papers,
as we've talked about before.
Not everybody in every statewas reading them, but they're
sort of a nice collection of theunderstandings that were being
discussed about.
If you sign your constitutionit's going to do X, y and Z.
Here's what we're trying to dowith that.

(04:16):
So they serve as, probablyafter contemporaneous, like
dictionary definitions orsomething to understand what a
phrase means or maybe other sortof contemporary legal cases.
But they're one of the bestsources of text that one can
look to in trying to understandat least for those who care
about such things sort of whatthe generation drafting, writing

(04:38):
, ratifying and serving, workingwith this constitution thought
it meant at the time.
And this is one little othersort of con lie articulation on
this.
So James Madison, for example,was always defending originalism
as the proper way to doconstitutional interpretation.
But he said and this is quiteinteresting that you don't care

(05:00):
so much about what the draftersprivately thought they were
doing.
So Madison actually resistedreleasing the records of the
Constitutional Conventionbecause he said nobody really
knew what our sort of privatethoughts were.
Nobody was signing off on that.
What matters, he says in a fewletters and texts and speeches

(05:20):
he gives, is basically, what didthe people signing the dotted
line think that they weresigning?
That's how you do a lot ofother contract law, but sort of
what did the people think theywere agreeing to?
That's what we should continueto be bound by, and so the
Federalist Papers, like some ofthe other ratifying convention
debates, serve as a really goodarticulation of that.
Again, they're not complete inevery feature.

(05:41):
There are places where they'renot commenting on a problem.
A problem comes up that theyweren't anticipating and
discussing.

Speaker 1 (05:49):
But they're pretty thorough in describing a lot of
the institutional arrangements,but they're pretty thorough in
describing a lot of theinstitutional arrangements Is
there because I know that thereare justices and judges who kind
of stick with the originalism,the original meaning of what the
Constitution was saying?
Are they more likely to utilizethings like the Federalist

(06:10):
Papers in their writings?

Speaker 2 (06:14):
Certainly they are and again I said that that's
particularly, but notexclusively common among more
conservative justices.
Arguably one of the greatestoriginalist justices in US
history was Hugo Black, who wasregarded as one of the most
progressive justices.
His interpretations of theCommerce Clause he wasn't being

(06:38):
that probably originalist onthat and a few other places in
some ways, but very, veryaggressive in trying to
understand, particularly oncivil liberties issues, I would
say, the original understanding.
Now the Federalist Papers arenot very good for civil
liberties issues because theBill of Rights obviously
post-dates the discussion in theFederalist.
But originalism as amethodology is not exclusive to
conservatives.

(06:58):
It's worth noting that, butwhich creates kind of an
interesting thing where you haveClarence Thomas citing Hugo
Black, who one is coded as theright-wing most justice and the
other one is probably the secondmost left-wing justice of his
era.
But yeah, as folks who areoriginalists are certainly the
ones that are going to beinterested in the most, but
they're not the only ones thatcite it.

(07:20):
I mean, other justices whowould not define themselves as
primarily originalist will stillmake originalist arguments and
they will still invoke theFederalist, for example.
So constitutionalinterpretation, you know there
are lots of different parts ofit and even within judges who
have similar philosophiesthey'll rank things a little

(07:40):
differently.
So just as an example of that,you know what do you do if
there's a tension between theoriginal understanding as
articulated in the Federalist,versus precedence right.
So even judges who would bothdescribe, who describe
themselves as originalists willsort of weigh those differently.
Clarence Thomas and AntoninScalia famously debated quite
extensively on this, whereasThomas would always say look,

(08:01):
the original understanding ofthe Constitution is the highest
value.
If there's a bad precedent, Idon't care how many decades of
precedents are bad, how manyprecedents are bad Like my oath
is to the Constitution, whereasScalia would say well, we're
this mixed sort of common lawand constitutional thing, so we
have to be deferential toprecedent.
So the Federalist Papers arenot an immediate conversation

(08:23):
winner, other than maybe forClarence Thomas.
But even somebody who's notaffiliated, associated with
originalist perspective willgenerally still find the
federalist papers at least, ifnot, you know, knock down
immediate conversation under amajor piece of evidence of
constitutional understanding.

Speaker 1 (08:44):
Fantastic, Dr Beinberg, as always.
Thank you.