The most-cited Federalist Papers.

• Author: Lupu, Ira C.

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 In the course of research in preparation of that response, I unearthed a variety of heretofore unpublished data concerning patterns of citation to The Federalist Papers in the Supreme Court Reports.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 Federalist No. 78 (Hamilton) on judicial review are likely to make many of these reader-generated lists. Those who make these two guesses about the contents of the Top Five list will be half-right.

Before disclosing the winners, I offer a few preliminary words. First, as to methodology, I have chosen to treat one or more citations to a particular Paper in a given decision as singular for counting purposes. That is, repeated citations to a Paper within a given opinion do not change the count, and citations to the same Paper in other opinions in the same case do not change the count. The first of these moves seems easy to defend; that a given Justice cites a Paper five times rather than once within an opinion may well say more about the idiosyncracies of citation style than it does about the Paper's substantive influence. The limitation on multiple counting if other opinions in the same case also cite the Paper is based on the possibility that a citation from one Justice may provoke others to cite and discuss it as well. This distorting potential seems greatest in the case of Papers cited in non-unanimous (that is, internally controversial) decisions. My choice of a count simplifier is obviously open to question, and different choices might well produce a different outcome for the Top Five.

Second, it is worth reflecting on the significance of the data. A count of this sort may reinforce or counter received wisdom on which Papers have been most influential, at least among the Justices. The count may cast light on which Federalist Paper author has been most influential. In addition, the data serve to highlight historical trends in constitutional adjudication; issues which dominated in the nineteenth century have receded, others have come to rather recent prominence, and some are always with us.

The envelopes, please. In reverse order (that is, presented from fifth to first), the five most heavily cited Federalist Papers in the history of Supreme Court adjudication are:

FIFTH. Federalist No. 32 (Hamilton)(3)--cited in twenty-five decisions of the Supreme Court.(4) Federalist No. 32 is concerned with the power of state taxation. In the essay, one of a series on the subject, Publius analyzes concurrent state and federal power to tax. He makes efforts to reassure the States that their taxing powers are unimpaired by the proposed Constitution, except for its qualified prohibition in Article I, Section 10 on state-created "Imposts or Duties on Imports or Exports."(5) Federalist No. 32 led all Papers in citations at the end of the nineteenth century, having appeared in eleven decisions by 1894; no other Paper had more than seven at the century's close. Perhaps the most famous citation to Federalist No. 32 is the first--Chief Justice Marshall, in M'Culloch v. Maryland,(6) rejects Maryland's reliance on Federalist No. 32 as authority for the state's power to tax the notes of the Bank of the United States. In the twentieth century, Federalist No. 32 has been cited in but fourteen decisions, and only five of these have occurred in the past twenty years. On the other hand, the Paper has had a recent resurgence, with three citations within the past three years. Accordingly, it is hard to predict whether Federalist No. 32 will fall from the Top Five in the not-too-distant future.

FOURTH. Federalist No. 51 (Madison)(7)--cited in twenty-six decisions of the Supreme Court.(8) Federalist No. 51 is the justly famous essay on checks and balances among the branches of the federal government. Its fourth paragraph, which begins, "But the great security against gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others," and continues through reflections on human nature and the need to design a government that can control itself, is one for which Publius remains well-known to students of American government.(9) The most striking feature of the citation pattern for Federalist No. 51 is the relative recency of its popularity with the Court. There are no nineteenth century citations to Federalist No. 51, and only one of the twenty-six citations occurred prior to 1960. Questions of separation of powers in the federal government have been matters of concern to the United States from the beginning of the Republic, but they have been the stuff of frequent adjudication for a much briefer period.

THIRD. Federalist No. 81 (Hamilton)(10)--cited in twenty-seven decisions of the Supreme Court.(11) Federalist No. 81 is a lengthy paper, one of a series by Hamilton on the subject of the federal judicial power. It begins by explaining why the British model of a legislative branch (the House of Lords) serving as a high court of law is unwise; proceeds through a discussion of the jurisdiction of the federal courts; analyzes potential relationships among the Supreme Court, whatever inferior federal courts Congress might establish, and the state courts; defends state sovereign immunity from compulsory federal jurisdiction; and concludes by refuting an argument that the structure of federal jurisdiction would tend to abolish trial by jury. The Paper's arguments concerning state sovereign immunity are of course particularly relevant to recent Supreme Court controversies, but the citation pattern for Federalist No. 81 (like the two Papers which finished ahead of it) includes a handful of nineteenth century decisions as well.

SECOND. Federalist No. 78 (Hamilton)(12)--cited in thirty decisions of the Supreme Court.(13) I suspect that Federalist No. 78 was...