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66 Geo. Wash. L. Rev. 1324 (1997-1998)
Time the Supreme Court and the Federalist

handle is hein.journals/gwlr66 and id is 1332 raw text is: Time, the Supreme Court, and The Federalist Ira C. Lupu* Professor Eskridge's strikingly original paper poses a most intriguing question: Why do current, self-proclaimed textualists on the Supreme Court eschew reliance on most conventional materials in the category of legislative history and yet rely significantly on The Federalist as a source of meaning in constitutional interpretation?1 Professor Eskridge is surely right that Scalia's Tanner Lectures, published as A Matter of Interpretation, do not give a suffi- cient justification for the practice.2 Professor Eskridge, proceeding somewhat dubitante, suggests three con- siderations designed to guide an answer to the question he raises. He first argues that the economics of research may support a (prospective only) rule of judicial exclusion of statutory history while not likewise supporting an exclusion of matters of constitutional history.3 Second, he contends that the discourse reflected in constitutional history in general, and in The Federalist in particular, is more reliable than that reflected in contemporary legislative history.4 Third, he somewhat murkily suggests an analytical connection be- tween abuse of judicial power and some (but not all) uses of constitutional history in the process of adjudication.5 Ultimately, he argues that (1) concern for the economics of research provides the soundest justification for a (pro- spective) rule of exclusion of legislative history from judicial consideration, and (2) the analysis of incentive effects that supports such a rule does not apply to constitutional history.6 Reasoning from these two conclusions, he suggests that the willingness of textualist Justices to cite The Federalist but not conventional legislative history may indeed be justifiable.7 In what follows, I seek to shed additional light on Professor Eskridge's multiple perspectives on the problem. In Part I, I discuss the economics of research and suggest that Professor Eskridge has overestimated the savings likely to be produced by the proposed rule of exclusion. In Part II, I address the issue of discourse reliability in The Federalist. I remark on James Madison's worries about the identical issue, and I survey empirically the Supreme Court's pattern of citation to The Federalist. In light of the stark * Louis Harkey Mayo Research Professor of Law, George Washington University Law School. Thanks to Julia Morgan for splendid research assistance in the preparation of this paper. 1 William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statu- tory Legislative History?, 66 GEo. WASH. L. REv. 1301 (1998). 2 See id. at 1297 (citing 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 MATrER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann ed., 1997)). 3 See id. at 1321-23. 4 See id. at 1318-21. 5 See id. at 1316-18. 6 See id. at 1321-23. 7 See id. at 1323. June/August 1998 Vol. 66 No. 5/6 1324

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