A concise guide to the federalist papers as a source of the original meaning of the United States constitution

Boston University Law Review

Volumn 87, Issue 4, 2007, Pages 801-847

  Maggs, Gregory E ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 36349018240     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (186)

1. U.S. CONST. art. VII ("The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same."). 2 Some writers also refer to the collection of the essays simply as "The Federalist." I have avoided this usage because it can be confusing. As described below, Hamilton, Madison, and Jay originally published most of the essays in newspapers. See infra Part II. Hamilton also collected these essays in a two-volume book called THE FEDERALIST: A COLLECTION OF ESSAYS WRITTEN IN FAVOUR OF THE NEW CONSTITUTION, AS AGREED UPON BY THE FEDERAL CONVENTION SEPTEMBER 17, 1787 (1788). In compiling this work, Madison edited the essays and added new ones that had not appeared in newspapers. See infra Part II. I prefer to use the term "Federalist Papers" to encompass both what appeared in newspapers and what appeared in the two-volume collection.
2. 19 U.S. (6 Wheat.) 264 (1821).
3. Id. at 418 (Marshall, C.J.).
4. I searched for "Federalist No." in Westlaw's JLR and ALLCASES databases.
5. 521 U.S. 898 passim (1997).
6. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).
7. See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 808-09 (1995) (quoting comments of James Madison at the Constitutional Convention as evidence of the original intent of the framers).
8. See Alden v. Maine, 527 U.S. 706, 716-19 (1999) (discussing evidence of the "original understanding" of the ratifiers of the Constitution).
9. Max Farrand's classic THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., rev. ed. 1937) (4 volumes) contains all the notes and records of the Constitutional Convention known as of 1937. The introduction contains an extremely detailed account of who took the notes, when they were published, and why they may contain inaccuracies. See 1 id., at xi-xxv.
10. ' See John Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955, 2037-40, 2074 (1999) (summarizing conflicting views at the Constitutional Convention and at the state ratifying conventions).
11. See RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 100-09 (2004) (describing this kind of meaning).
12. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3, 38 (Amy Gutmann ed., 1997).
13. See, e.g., Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101, 111-25 (2001) (using the methodology to determine whether the word "commerce" in the Commerce Clause refers specifically to the exchange of goods or more broadly to any gainful activity).
14. See, e.g., Ronald D. Rotunda, Original Intent, the View of the Framers, and the Role of the Ratifiers, 41 VAND. L. REV. 507, 512 (1988).
15. See, e.g., Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 398 (2002).
16. For classic defenses of originalism - the school of constitutional interpretation that courts must follow the original meaning of the Constitution - see generally RAOUL BERGER, GOVERNMENT BY JUDICIARY (2d ed. 1997); ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990); Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631 (1993); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989). For classic criticism of originalism, see generally Boris I. Bittker, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past, 77 CAL. L. REV. 235 (1989); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980); H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
17. Letter from James Madison to James K. Paulding (July 23, 1818), in 8 THE WRITINGS OF JAMES MADISON 410, 410 (Galliard Hunt ed., 1908).
18. The chronology in Appendix B infra shows the date of first publication of each of the eighty-five essays. More information about their publication appears below.
19. Article VII says that the Constitution received the "Unanimous Consent of the States" present at the Convention, but it slyly does not mention that New York was not present when the Constitution was signed. U.S. CONST. art. VII; see also 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 665 (identifying the states present when the Constitutional Convention approved the Constitution). Indeed, the Constitution may have given casual readers the impression that New York's delegation was present and had consented. Article VII carefully identifies the persons who signed the constitution not as deputies in support of the Constitution, but instead as witnesses. U.S. CONST. art. VII. Alexander Hamilton accordingly was able to sign the Constitution, with an indication that he was from New York, because he was only witnessing that the Constitution had the unanimous consent of the states present.
20. See Letter from Robert Yates and John Lansing, Jr. to the Governor of New York, in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 244-47 (reproducing a letter from the New York delegates explaining why they left the Convention).
21. The Convention had adopted a rule permitting a state to vote only when "fully represented." See Journal (May 28, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 7-8. Perhaps this rule prevented Hamilton from voting on behalf of New York. It did not prevent him from speaking and otherwise participating.
22. Governor Clinton apparently wrote under the pseudonym "Cato." For his letters, see Letters of Cato (Sept. 1787 - Jan. 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 101-29 (Herbert J. Storing ed., 1981).
23. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 206-07 (Jonathan Elliot ed., 1836) [hereinafter ELLIOT'S DEBATES] (listing delegates).
24. See Norman R. Williams, The Failings of Originalism: The Federal Courts and the Power of Precedent, 37 U.C. DAVIS L. REV. 761, 811 & n. 192 (2004).
25. The Constitution technically did not require New York's ratification to go into effect. On the contrary, Article VII said that ratification of any nine states could establish the Constitution "between the States so ratifying." U.S. CONST. art. VII. Thus, the United States in theory could have existed without New York's ratification. In fact, the new government began before Rhode Island ratified the Constitution.
26. The 1790 census counted 340,241 persons in New York, making it only smaller in population than Massachusetts, North Carolina, Pennsylvania, and Virginia. See 1 HISTORICAL STATISTICS OF THE UNITED STATES 1-306 (Susan B. Carter et al. eds., 2006).
27. See RICHARD BROOKHISER, ALEXANDERHAMILTON: AMERICAN 24-25, 29 (1999) (discussing Hamilton's early writings and his promotion within the Continental Army).
28. See id. at 51, 62.
29. See id. at 73-74.
30. See id. at 77.
31. See GEORGE PELLEW, AMERICAN STATESMEN: JOHN JAY 59-75, 110-11, 127 (1890).
32. See id. at 77-90, 95-97, 166-228.
33. See id. at 229-35.
34. See id. at 255.
35. See id. at 262-63, 318.
36. See Douglass Adair, The Authorship of the Disputed Federalist Papers: Part II, 1 WM. & MARY Q. 235, 245 (1944) (describing "Hamilton's desire for collaborators," including Gouverneur Morris).
37. James Madison, Memorandum entitled "The Federalist," in Elizabeth Fleet, Madison's "Detached Memorandum," 3 WM. & MARY Q. 534, 564 (1946) [hereinafter Madison's "Detached Memorandum"] (stating that "William Duer was also included in the original plan").
38. See FRIENDS OF THE CONSTITUTION: WRITINGS OF THE "OTHER" FEDERALISTS 1787-1788, at 109-12 (Colleen A. Sheehan & Gary L. McDowell eds., 1998) (William Duer writing as "Philo-Publius").
39. See RALPH KETCHUM, JAMES MADISON: A BIOGRAPHY 89-92, 154(1st ed. 1971).
40. See id. at 196-226.
41. See id. at 231.
42. See id. at 249-69.
43. See id. at 289-92.
44. See id. at 406, 466-69.
45. Madison 's "Detached Memorandum, " supra note 38, at 565.
46. Id.
47. See THE FEDERALIST PAPERS, at x (Clinton Rossiter ed., Signet 1991).
48. See Adair, supra note 37, at 245 n.19.
49. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 368 & n.3 (1995) (Thomas, J., concurring) (citing George Mason, Objections to the Constitution, VA. J., Nov. 22, 1787, reprinted in 1 THE DEBATE ON THE CONSTITUTION 345 (Bernard Bailyn ed., 1993), and Luther Martin, The Genuine Information, MD. GAZETTE, Dec. 28, 1787 - Feb. 8, 1788, reprinted in 1 THE DEBATE ON THE CONSTITUTION 631 (Bernard Bailyn ed., 1993)). Justice Thomas says that Mason and Martin may have felt that they needed to explain why they attended the Constitutional Convention but did not sign the Constitution. See id.
50. See THE FEDERALIST, at xix-xx (Jacob E. Cooke ed., 1961).
51. See Introduction to Commentary No. 201, in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 489 (John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter Commentary No. 201].
52. Id. at 488.
53. See id. at 489 (listing the authors of each of the essays and suggesting that Madison probably wrote all of the disputed essays, Nos. 18-20, 49-58, and 62-63). Historians have disputed whether Hamilton or Madison wrote number 15, but most agree that it was Hamilton. See, e.g., id.
54. See THE FEDERALIST, at xiv (Jacob E. Cooke ed., 1961).
55. See id. at xviii.
56. THE FEDERALIST PAPERS (Clinton Rossiter ed., 1961).
57. THE FEDERALIST (Jacob E. Cooke ed., 1961).
58. For recent examples of citations to the Rossiter edition, see Roper v. Simmons, 543 U.S. 551, 578 (2005); United States v. Booker, 543 U.S. 220, 239 (2005); Eldred v. Ashcroft, 537 U.S. 186, 212 n. 18 (2003). For recent examples of citations to the Cooke edition, see Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004); Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003); JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., 536 U.S. 88, 96 (2002).
59. For citation form, THE BLUEBOOK says to "list the usual publication information for the edition cited" and gives the following example: "THE FEDERALIST NO. 5, at 53 (John Jay) (Clinton Rossiter ed., 1961)." THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 15.8(c)(i), at 136 (Columbia Law Review Ass'n et al. eds., 18th ed. 2005).
60. See Letter from Archibald McLean to Robert Troup (Oct. 11, 1788), in ALLAN MCLANE HAMILTON, THE INTIMATE LIFE OF ALEXANDER HAMILTON 82 ( 1910).
61. See Commentary No. 201, supra note 52, at 491-92; see also THE FEDERALIST PAPERS, at xi (Clinton Rossiter ed., 1961) ("Copies of the collected edition were rushed to Richmond at Hamilton's direction and used gratefully by advocates of the Constitution in the climactic debate over ratification.").
62. See Elaine F. Crane, Publius in the Provinces: Where Was The Federalist Reprinted Outside New York City?, 21 WM. & MARY Q. 589, 590 (1964).
63. See FRANK LUTHER MOTT, AMERICAN JOURNALISM: A HISTORY OF NEWSPAPERS IN THE UNITED STATES THROUGH 260 YEARS: 1690 TO 1950, at 159 (rev. ed. 1950).
64. ALFRED MCCLUNG LEE, THE DAILY NEWSPAPER IN AMERICA 29 (1937) (estimating that 1500 copies would have taken fifteen to thirty hours using a manual press). 66 See id.
65. See MOTT, supra note 64, at 159.
66. THE FEDERALIST, at xii (Jacob E. Cooke ed., 1961).
67. See Crane, supra note 63, at 590.
68. Id.
69. Id.
70. Id.
71. See Commentary No. 201, supra note 52, at 490-91.
72. Crane, supra note 63, at 591.
73. Id. The American Museum, which published the first six essays, claimed a circulation of 1250 in the late 1700s, the largest of any American magazine. See FRANK LUTHER MOTT, A HISTORY OF AMERICAN MAGAZINES, 1741 -1850, at 14 (1930).
74. The Library of Congress has a searchable version of ELLIOT'S DEBATES, supra note 24, at its website. The Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875, http://memory.loc.gov/ammem/hlawquery.html (choose "Elliot's Debates full text" from the drop-down menu labeled "All Titles (or select a title)") (last visited Aug. 15, 2007).
75. THE FEDERALIST No. 1, at 6-7 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
76. Id. at 7.
77. Ira C. Lupu, The Most-Cited Federalist Papers, 15 CONST. COMMENT. 403, 404-10 (1998).
78. 3 U.S. (3 Dall.) 386 (1798).
79. Id. at 386-87.
80. See id. at 391.
81. Id.
82. 5 U.S. (1 Cranch) 137 (1803).
83. Id. at 137-38.
84. Id. at 147.
85. Id. at 151.
86. 10 U.S. (6 Cranch) 87, 122 (1810) (referencing the Federalist Papers as cited in argument of defendant in error).
87. 14 U.S. (1 Wheat.) 304, 313 (1816) (referencing the Federalist Papers as cited in argument of plaintiff in error).
88. 17 U.S. (4 Wheat.) 316, 433-34 (1819) (discussing passages of the Federalist Papers relating to the states' taxation powers).
89. 17 U.S. (4 Wheat.) 518, 590 n.a, 608 n.a (1819) (referencing the Federalist Papers as cited in arguments of multiple parties).
90. 19 U.S. (6 Wheat.) 264, 418-19 (1821) (discussing the Federalist Papers' stance on the extent of judicial power).
91. 22 U.S. (9 Wheat.) 1, 34 n.a, 38 nn.a-d, 48 n.a (1824) (referencing the Federalist Papers as cited in argument of respondent).
92. Ira C. Lupu, Time, the Supreme Court, and The Federalist, 66 GEO. WASH. L. REV. 1324, 1329 (1998).
93. See id. at 1330.
94. See William H. Manz, Citations in Supreme Court Opinions and Briefs: A Comparative Study, 94 LAW LIBR. J. 267, 282-83 tbls. 18-21 (2002); Buckner F. Melton, Jr., The Supreme Court and The Federalist: A Citation List and Analysis, 1789-1996, 85 KY. L.J. 243, 257-326 (1996-1997); James G. Wilson, The Most Sacred Text: The Supreme Court's Use of The Federalist Papers, 1985 BYU L. REV. 65, 66.
95. See supra text accompanying note 5.
96. See Melvyn R. Durchslag, The Supreme Court and The Federalist Papers: Is There Less Here than Meets the Eye?, 14 WM. & MARY BILL RTS. J. 243, 313 (2005) (concluding after examining the Supreme Court's cases that "it is hard to come up with more than a small handful of cases where The Federalist even arguably played a decisive role in the Court's decision").
97. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at xv-xix, xxi.
98. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 418 (1821) (Marshall, C.J.).
99. THE FEDERALIST NO. 34, at 215 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
100. Madison 's "Detached Memorandum, " supra note 38, at 565.
101. 514 U.S. 779 (1995).
102. See id. at 783.
103. Id. at 804-05.
104. Id. at 806.
105. Id. at 806-07 (quoting THE FEDERALIST NO. 52, at 325 (James Madison) (Clinton Rossiter ed., 1961)).
106. Printz v. United States, 521 U.S. 898, 910 (1997). In using the term "original understanding" in this quotation, I assume that the Court is referring to the original understanding "of the ratifiers" even though the Court does not state this qualifier explicitly. This assumption is consistent with customary usage of the term "original understanding." In addition, the Court followed the quotation with citations drawn from a section of the government's brief expressly addressing the ratification of the Constitution. See id. (discussing quotations from the Federalist Papers identified in the Brief for the United States at 25-28, Printz v. United States, 521 U.S. 898 (1997) (No. 95-1478), 1996 WL 595005).
107. In re Sealed Case, 838 F.2d 476, 492 (D.C. Cir. 1988) (Silberman, J.), rev'dsub nom., Morrison v. Olson, 487 U.S. 654 (1988).
108. See infra Part IV.
109. See Commentary No. 201, supra note 52, at 488 ('"Publius' was fully aware of and concerned with the influential Antifederalist literature appearing almost daily in newspapers, broadsides, and pamphlets.").
110. 79 U.S. (12 Wall.) 457, 585 (1870) (Chase, C.J., dissenting).
111. Id. at 553-54.
112. Id. at 584-85 (Chase, C.J., dissenting).
113. Id. at 585 (footnote omitted).
114. See, e.g., Printz v. United States, 521 U.S. at 910.
115. 514 U.S. 549, 585 (1995) (Thomas, J., concurring).
116. Id. at 551.
117. Id. at 585.
118. See id. at 585-86 (citing N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (26th ed. 1789); 1 S. JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE 361 (4th ed. 1773); T. SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1796)).
119. Id. at 586 (footnote omitted).
120. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 752 (2002) (citing the Federalist Papers as a source "[r] effecting the widespread understanding at the time the Constitution was drafted").
121. See Scalia, supra note 13, at 38 (1997).
122. 3 U.S. (3 Dall.) 386 (1798).
123. See id. at 391 (praising the authors for their "extensive and accurate knowledge" of the law).
124. See William N. Eskridge, Jr., Cycling Legislative Intent, 12 INT'L REV. L. & ECON. 260, 261 (1992); David McGowan, Ethos in Law and History: Alexander Hamilton, The Federalist, and the Supreme Court, 85 MINN. L. REV. 755, 755-56 (2001).
125. Eskridge, supra note 126, at 261.
126. For further treatment of this topic, see Dan T. Coenen, A Rhetoric for Ratification: The Argument of The Federalist and Its Impact on Constitutional Interpretation, 56 DUKE L.J. 469, 528-29, 535-37 (2006) (discussing how judges have viewed the Federalist Papers as an icon, a treatise, and as brilliant philosophy).
127. See, e.g., Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469, 477 (1981) ("[T]here is no such thing as the intention of the Framers waiting to be discovered, even in principle. There is only some such thing waiting to be invented.").
128. THE FEDERALIST NO. 78, at 525 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
129. See supra notes 70-72 and accompanying text.
130. See Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 665 n.237 (1999).
131. Id. (quoting Aristides, Remarks on the Proposed Plan of a Federal Government (Jan. 31, 1788 - Mar. 27, 1788), in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 517, 521-22 (John P. Kaminski & Caspare J. Saladino eds., 1984)).
132. Id. (citing Commentary No. 201, supra note 52, at 494).
133. Id.
134. See supra note 73.
135. See Raoul Berger, Original Intent and Boris Bittker, 66 IND. L.J. 723, 743 n.152 (1991).
136. Because the authors of The Federalist had to rebut legitimate arguments of the Anti-Federalist, William N. Eskridge Jr. has questioned whether "The Federalist even honestly reflects the views of Madison and Hamilton themselves." William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1309 (1998).
137. 18 Va. 1 (1813).
138. Id. at 27.
139. See Joseph M. Lynch, The Federalists and the Federalist: A Forgotten History, 31 SETON HALL L. REV. 18, 26-27 (2000) (citing Justice Roane's opinion); Williams, supra note 25, at 809-10 (arguing that while the authors of the Federalist Papers were not political "spin-doctors," their readers may not have given much weight to what they said).
140. See Coenen, supra note 128, at 472-73 (explaining his methods).
141. See id. at 542.
142. Id.
143. See John F. Manning, Textualism and the Role of the Federalist in Constitutional Adjudication, 66 GEO. WASH. L. REV. 1337, 1354 (1998) ("As a piece of advocacy - and an anonymous one at that - The Federalist lacks similar usefulness as a window into the reasonable ratifier's likely understanding.").
144. See supra Part II.
145. See Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. VA. L. REV. 601, 603-17 (2003).
146. THE FEDERALIST NO. 66, at 449 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
147. See, e.g., Orrin G. Hatch, Presidential Privilege, NAT'L REV. ONLINE, July 14, 2005, available at http://article.nationalreview.com/?q=MTNkNGIyNDhlZDU5NDM0MTM0ZTg 5OTkyODNhNzczMjA=.
148. Hunter v. Martin, 18 Va. 1, 27-28 (1813), rev'd sub nom, Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
149. THE FEDERALIST NO. 84, at 579 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
150. See generally THE COMPLETE ANTI- FEDERALIST, supra note 23 (multi-volume collection of writing opposing ratification of the Constitution).
151. Berger, supra note 137, at 743.
152. See McGowan, supra note 126, at 829 (arguing that "[t]here is no solid evidence that The Federalist swayed any votes").
153. See John P. Kaminski, New York: The Reluctant Pillar, in THE RELUCTANT PILLAR: NEW YORK AND THE ADOPTION OF THE FEDERAL CONSTITUTION 48, 115 (Stephen L. Schlechter ed., 1985).
154. See FORREST MCDONALD, ALEXANDER HAMILTON 114-15 (1979) (recounting that Jay and Hamilton announced that New York City would "secede from the state and join the Union" if New York did not ratify).
155. 521 U.S. 898, 914-15 (1997).
156. Id.
157. THE FEDERALIST NO. 44, at 307 (James Madison) (Jacob E. Cooke ed. 1961).
158. THE FEDERALIST NO. 27, at 175 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
159. Printz, 521 U.S. at 915 n.9 (quoting DAAN BRAVEMAN ET AL., CONSTITUTIONAL LAW: STRUCTURE AND RIGHTS IN OUR FEDERAL SYSTEM 198-99 (3d ed. 1996)).
160. Id.
161. See Timothy Zick, The Consent of the Governed: Recall of United States Senators, 103 DICK. L. REV. 567, 606 n.180 (1999).
162. See David Thomas Konig, The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms," 22 LAW & HIST. REV. 119, 152 (2004).
163. See Ana Maria Merico-Stephens, Of Maine's Sovereignty, Alden's Federalism, and the Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.C. DAVIS L. REV. 325, 364 (2000).
164. See H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 684-87 (1987).
165. Printz, 521 U.S. at 915 & n.9.
166. See Note, Publius and Federalism: On the Use and Abuse of The Federalist in Constitutional Interpretation, 68 N.Y.U. L. REV. 821, 845 (1993) (discussing whether Hamilton can provide an accurate view of the original intent).
167. See 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 588 (explaining that Hamilton "[a]ttended on May 18; left Convention June 29; was in New York after July 2; appears to have been in Philadelphia on July 13; attended Convention August 13; was in New York August 20 - September 2").
168. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at xxi (stating that Hamilton's notes "are little more than brief memoranda" and of not much importance "in determining what others thought or said").
169. The Convention adopted a rule permitting a state to vote only when "fully represented." Journal (May 28, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at 7-8. This rule may have prevented Hamilton from voting on behalf of New York, but it did not prevent him from speaking. At the close of the Convention, Hamilton signed the Constitution as a witness that the Convention was acting with the "unanimous consent of the states present." U.S. CONST. art. VII. This affirmation was true; although New York did not consent, it was not "present" after Lansing and Yates departed.
170. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 10, at xv-xix.
171. See Eskridge, supra note 138, at 1309.
172. U.S. CONST. art. I, § 8, cl. 1.
173. THE FEDERALIST NO. 34, at 215 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
174. A reply might be the authors of the Federalist Papers were making insincere arguments in an effort to secure ratification. See Eskridge, supra note 138, at 1309.
175. See Vikram Amar & Alan Brownstein, Bush v. Gore and Article II: Pressured Judgment Makes Dubious Law, 48 FED. LAW. 27, 31-32 (2001).
176. THE FEDERALIST NO. 44, at 307 (James Madison) (Jacob E. Cooke ed., 1961).
177. THE FEDERALIST NO. 45, at 311 (James Madison) (Jacob E. Cooke ed., 1961).
178. See Amar & Brownstein, supra note 177, at 32.
179. See id.
180. 1 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 5 (1953).
181. Id. at 5-6.
182. See supra Part III.
183. Lynch, supra note 141, at 23.
184. Id. at 29.
185. JACK N. RAKOVE, ORIGINAL MEANINGS; POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 17 (1996).
186. See Eskridge, supra note 138, at 1310.