Today in Supreme Court History: October 27, 1787

10/27/1787: First Federalist Paper is published.

Alexander Hamilton

Comments

[Brett Bellmore]

I've always advised that, if you mean to read the federalist papers, you get the combined edition of Federalist AND anti-Federalist papers. Otherwise you're just looking at one side of what was, after all, a debate.

I think history has actually shown that the anti-Federalists were right about a lot of their objections to the Constitution. While the Articles of Confederation did need revision, the Constitution over-shot the mark, and went too far in the direction of a powerful central state.

[Sarcastr0]

It was a debate where one side won, though.

If you care about the political philosophy, read both.

If you are an originalist and want a sense of the thinking of the drafters of the Constitution, you need only read the Federalist Papers.
(though drafter's intent is too scattered for that to work as well as public meaning. And even that is a pinched perspective to base your entire understanding of our constitution on.)

[Dan Schiavetta]

The Federalist Papers were written by:

Hamilton
At the Convention Hamilton advocated for a very powerful federal government, with a President and Senate elected for life, and the complete crushing of the states. When he didn't get his way he walked out, returning only weeks later when all that was being worked out were details.

Madison
Madison's "Virginia Plan" advocated for a strong federal government (not as overwhelming as Hamilton's of course) and during the Convention it got chipped away and chipped away.

John Jay
Jay, who wasn't at the Convention, would probably have been in between Hamilton and Madison.

IOW -- the Federalist Papers are not the side that "won". They present a stronger federal government than was actually agreed to.

[Bob from Ohio]

They were op-eds, no court should look to them.

[David Nieporent]

Of course courts should. They were op-eds by the proponents of the constitution, explaining it and advocating for it. An originalist approach requires asking how the provisions were generally understood at the time. A public explanation of what a provision means, that leads to people ratifying it, is evidence of what they understood it to mean.

[Dilan Esper]

In general, I think Scalia was right about legislative history. Proponents for things often make self-serving statements. The best thing to do with the Federalist Papers is ignore them. They certainly aren't any better evidence of original understanding than anything else, and (contra Scalia) original understanding isn't nearly as important as other factors in interpretation anyway.

[James Pollock]

If you have a backward-looking way of thinking, the way things have always been is crucial to thinking about the way things ought to be, which is what law intrinsically is. But the fact that the Founders thought things ought to be a certain way is not conclusive proof that things, in fact, ought to be that way. The Founders accepted human hereditary slavery, which should settle that question. (the one about the Founders being always right, not the one about whether there should be hereditary slavery.)

[Keith Waters]

This is what some fail to consider. BTW, to another poster, Madison was not a Federalist. The columns were a joint attempt to present the document in the most favorable light. Hamilton and Madison were to have major disagreements once the government got underway. From what I remember reading, Madison was a nationalist until he saw what he perceived to be a danger to Virginia. He had Virginia's interests at the center of his actions.

Incidentally, just as a wild guess, I would say Hamilton today would be a National Greatness Republican. Very "pro business" but an advocate for an expansive view of federal power. He would not have had a problem with Biden's vaccine mandate or, for that matter, any other executive mandate.

[Brett Bellmore]

That's hard to say, because, while Hamilton wanted a much more powerful and centralized government than the other founders, you have to put it in context: His idea of powerful government would be denounced as anarchy today, our government has grown so much.

[James Pollock]

There's a history of events showing that the then-current federal powers were not sufficient. The Articles of Confederation were failing just a dozen years after being adopted, so you got the Constitutional federal government. Which failed in 1861, and was strengthened in 1868 to take on the role of protector of individual liberty against incursion by the states. Some people today are extremely frustrated that the federal government has this power, and in at least one case these peoples' name is "Brett".

[James Pollock]

"IOW -- the Federalist Papers are not the side that "won". They present a stronger federal government than was actually agreed to."

Skip ahead to 1868, when that stronger federal government was actually implemented.

[Brett Bellmore]

"It was a debate where one side won, though."

It was a debate where one side won on some things, the other on other things, which is why we have a Bill of Rights.

[Sarcastr0]

No, the Bill of Rights was written by Madison, a Federalist.

[Brett Bellmore]

And wouldn't have been, if not for the anti-Federalists. It was a concession the Federalists hadn't wanted to make.

[James Pollock]

And shouldn't have made. It's better for individual freedom if the default is "no, the government can't do that, unless they've been specifically authorized to do that." Having a list of things the government can't do implies that the list is complete, even when it specifically and unambiguously says that it isn't.

[Keith Waters]

It is one thing to be for original public meaning of words or phrases. It is another to be for "original intent." I have a valued book called "Negotiating the Constitution: the Earliest Debates on Original Intent."

Truth of the matter is that OI was almost always frowned on by those in Congress when debating a bill or executive action. Whose intent? What about failed memories? What were the "voters" agreeing on? Originalism is fine as far as it goes, but it doesn't go as far as some would like it.

[Brett Bellmore]

Really, these are the sort of weeds you only get into if textualism has already failed to resolve the question. But, I agree, original public meaning.

[James Pollock]

"Originalism is fine as far as it goes, but it doesn't go as far as some would like it."

Your first mistake is believing a word that that kind of "originalist" says. It once was practice to include a preamble that explained what the intent of the text was. That practice continued in rudimentary form with Congress pre-appending "findings" to new statutes for a while, but now it's pretty much gone.
Now, It's like looking to what Jesus said, and somehow getting "Prosperity Gospel" out of it. If you want to find something in the text badly enough, you can pretend you found it in there.

[Brett Bellmore]

By the way, anybody got a clue about why I suddenly need to open comments in a new tab in order to see them?

[Sarcastr0]

You are not the first to complain, but I've got no issues myself.

[Rev. Arthur L. Kirkland]

" By the way, anybody got a clue about why I suddenly need to open comments in a new tab in order to see them? "

Biden.

I applaud this.

[Ed Grinberg]

You think?

[Rev. Arthur L. Kirkland]

I know.

[James Pollock]

"By the way, anybody got a clue about why I suddenly need to open comments in a new tab in order to see them?"

The clue is, your computer is not set up correctly.

[Jimmy the Dane]

The media headline to the Federalist papers today would simply be "White Man publishes racist manifesto...."

[Brett Bellmore]

Then the author would be doxed.

[James Pollock]

... if Brett were in charge, doxed and subsequently shot.

[James Pollock]

This is another one of those calendar days when there wasn't much actual Supreme Court history to note, so the poor obsessive chronicler can't just say "today is a one of those days that doesn't seem to have any actual Supreme Court history to take note of" and has to stretch to find something, ANYTHING that happened on this calendar date.