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John F. Manning, Textualism and the Role of the Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337 (1998).

Abstract: This paper addresses whether textualist objections to the use of legislative history in statutory interpretation apply with equal force to judicial reliance upon The Federalist in constitutional adjudication. The Federalist is susceptible to many of the same concerns as is legislative history. Hamilton’s, Madison’s, and Jay’s essays certainly not “enacted;” the ratifying conventions voted on the constitutional text, not on essays published during the ratification debates. Judges, moreover, have no basis for thinking that a constitutionally sufficient number of ratifiers assented to The Federalist’s intricate and often-lengthy essays, in whole or in part. Finally, textualists subscribe to an objective theory of interpretation, pursuant to which interpreters ask what a reasonable lawmaker, familiar with the relevant interpretive conventions, would have believed that he or she was voting for. Because a reasonable ratifier surely would not have understood The Federalist to be an authoritative expression of constitutional intent or meaning, a modern interpreter may not read it that way either. Even if not authoritative, however, The Federalist may still have persuasive value as a detailed, contemporaneous exposition of the Constitution by authors who were intimately familiar with its legal and political context. Of course, because The Federalist was a piece of political advocacy whose contents may at times reflect the exigencies of political debate, an interpreter must always examine its assertions for consistency with all surrounding contextual evidence. In short, to borrow from another interpretive context, when a textualist judge relies on The Federalist in constitutional adjudication, he or she must give it whatever weight is justified by “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”