The Federalist & Anti-Federalist Papers as near-law authority

Some documents are not law, yet carry so much interpretive weight that courts cite them constantly. The prime example is The Federalist — and, on the other side of the argument, the Anti-Federalist writings.

What they are

The Federalist (the “Federalist Papers”) is a series of 85 essays published in 1787–1788 under the pseudonym “Publius” by Alexander Hamilton, James Madison, and John Jay, urging New York to ratify the Constitution. The Anti-Federalist Papers is the umbrella name for the many essays (by writers such as “Brutus” and “Cato”) arguing against ratification or for a bill of rights.

Why courts treat them as weighty — but not binding

They are persuasive authority, not law. But because they were written contemporaneously with ratification and explain the design of the Constitution to the very public that ratified it, courts — including the Supreme Court — cite them as strong evidence of original intent and original meaning. The Federalist is one of the most-cited non-judicial sources in American constitutional law. The Anti-Federalist writings matter too: they show what the ratifiers were reacting to and worried about, which is itself evidence of meaning.

Weighty evidence of what the Constitution was understood to mean — not a binding rule of decision. A court may quote Federalist No. 78 on judicial power; it is still bound by the Constitution’s text and by precedent, not by Hamilton’s essay. General principle on the interpretive use of The Federalist.

How to cite them

The Federalist is cited by essay number and author, e.g. The Federalist No. 78 (Alexander Hamilton). Full public-domain text: Library of Congress →
Anti-Federalist essays are cited by pseudonym (and, where known, author), e.g. Brutus No. 1.