M’Culloch and The Federalist
M’Culloch v. Maryland is widely acknowledged as one of the most important opinions in constitutional law, but perhaps its most unheralded contribution was the canonization of The Federalist. Lawyers were aware of Madison, Hamilton, and Jay’s work before 1819, but there is no indication that the essays were considered a special or authoritative source then the way they are now. When did that change?
A good argument can be made that Chief Justice Marshall’s comments about them in his taxation discussion made the difference. Here are some excerpts:
“In the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained; and to understand the argument, we must examine the proposition it maintains, and the objections against which it is directed.”
Marshall then rejected Maryland’s interpretation of The Federalist as applied to the taxing power of the states, concluding with this:
“Had the authors of those excellent essays been asked, whether they contended for that construction of the constitution, which would place within the reach of the states those measures which the government might adopt for the execution of its powers; no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative.”
Citations to The Federalist in the Supreme Court picked up noticeably after M’Culloch lavished praise on the collection, though I can’t be sure about cause and effect.