Summary
A survey that measured the frequency with which the US Supreme Court cited the Federalist Papers in judicial opinions lists the following five as the most cited. They are listed in order from least cited to most cited. Federalist Paper No. 32, by Alexander Hamilton, concerning state taxation. Paper No. 51, by James Madison, concerning governmental checks and balances. Paper No. 81, by Hamilton, concerning federal judicial power. Paper No. 78, by Hamilton, concerning judicial review of constitutionality of acts by other branches of government. Paper No. 42, by Madison, concerning a wide range of federal powers.
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Extract
The most-cited Federalist Papers.
In early 1998, the George Washington Law Review held a Symposium on "Textualism and the Constitution." At that event, Professor William Eskridge presented a paper entitled "Should the Supreme Court Read the Federalist Papers But Not Statutory Legislative History?"(1) The editors of that Review kindly invited me to prepare a response to Professor Eskridge's piece. In the course of research in preparation of that response, I unearthed a variety of heretofore unpublished data concerning patterns of citation to The Federalist Papers in the Supreme Court Reports. Much of that data--in particular, those portions which reveal the direction and rate of change in such citation practices over time--is published in that piece.(2) One aspect of the data unaddressed there, however, pertains to which of the Papers have received the most attention from the Justices.
This brief essay attempts to remedy that omission. In what follows, I list in ascending order the five Federalist Papers most frequently cited in opinions of the Supreme Court. Readers will no doubt have their own judgments as to which Papers are most deserving of citation, and their own predictions as to which are actually in the Top Five. I suspect that Federalist No. 10 (Madison) on the role of factions in the proposed regime and ...See the full content of this document
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