Read THIS and try to tell me again how the Federalist papers
Sat Mar 2, 2019 7:29pm

are somehow the be all and end all of discussion just because one of them wrote something in particular that bolsters your argument ???

The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation

105 West Virginia Law Review 601-19 (2003)

19 Pages ●Posted: 9 Jan 2004 ●Last revised: 14 Aug 2008

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law


The Federalist Papers ill serves judicial opinion writing when cited for anything but analyzing the largest constitutional structures and their purposes - as opposed to the Constitution's details, which, although discussed, were not the main subject matter of contention between those supporting and those opposing ratification. Moreover, modern judicial craftsman cannot assume that each and every paper is free of error. They are not. Across the Papers are both minor and major errors of various sorts; thus, the Papers must be read and analyzed (as any other document must be) rather than casually cited (as if each and every Paper is free of defect) for the point under discussion. And, lastly, blithely relying on the rationales put forward by the Papers should not preclude our realizing that not only are some passages of the Constitution in deep tension, but rather, some passages are logically incoherent. Under these circumstances, all rationales put forward - those in the Papers included - are equally problematic.

This paper is largely written in a comic mode so as to be more accessible to the generalist lawyer and lay reader - the same audience to whom the Papers were originally addressed. Additionally, this paper also explores some undiscussed aspects of House and Senate contingency elections in the event of the failure of the electoral college to select a President and/or a Vice President.

Keywords: Constitutional law, The Federalist Papers, interpretation, error, quorum requirements, size of the legislature, House and Senate contingency elections for President and Vice President, function of tie-breaking vote of Vice President, electors selected by state legislatures and not by the people

JEL Classification: D7, D72

Suggested Citation:

Tillman, Seth Barrett, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation. 105 West Virginia Law Review 601-19 (2003). Available at SSRN:


If you download the PDF document, you'll see how the Harvard Law Review responded to them. They are full of ERRORS and CONTRADICTIONS. They've been referred to as well reasoned arguments AND AS PROPAGANDA to get the constitution ratified. The writers used WHATEVER method they felt necessary to change the minds of the voters in NY to get it ratified, meaning that NOTHING is carved in stone as "accurate".

  • WHO the hell do you and SES think that you are that you can arbitrarily declare something you BELIEVE as FACT and no one can dispute you when ACTUAL experts cannot agree on it ????? I don't have to... more
    • This isn't rocket science...Sprout, Mon Mar 4 9:13am
      We have an explanation by someone who was there. We have opinions by board posters... Which should we give more credibility to? I know you would PREFER to give more credibility to whatever position... more
    • Read THIS and try to tell me again how the Federalist papers — Sia☺giah, Sat Mar 2 7:29pm
      • "The Federalist Papers ill serves judicial opinion writing when cited for anything but analyzing the largest constitutional structures and their purposes "...yeah, like impeachment and how a sitting... more
        • Your Analysis Ignores...Amadeus, Mon Mar 4 9:56am
          ...a glaring hole. What if the President were indicted, but refused to leave office? What recourse would we have? The whole government could collapse! We need a way to remove a President from office, ... more
          • Amadeus: "I would wager that the Federalist Papers offer no argument about the prosecution and indictment of the President for two reasons." That's incorrect. In TWO PLACES, the Federalist Papers say ... more
            • Thanks For The Correction...Amadeus, Mon Mar 4 11:25am
              The first reference (#65) actually uses "still be liable" which indicates a continuing state of vulnerability to prosecution. The second (#69) presupposes that impeachment would come first, and then... more
              • Ah, and there's the rub, as they say.SES, Mon Mar 4 11:36am
                I can point to what the Constitution actually says, and to the words of Alexander Hamilton, to support my position. The other position can only SPECULATE based on what is NOT in the Constitution, and ... more
                • Ironically...Amadeus, Mon Mar 4 11:46am
         are not pointing to what the Constitution says. You are pointing to a blank spot. The Constitution does NOT say, for example: "The President must be impeached and removed from office before... more
                  • with the diametrically opposed arguments of the experts... Some who believe impeachment MUST be first before indictment and others who believe the order is NOT spelled out specifically. In the end,... more
                    • Nope. Not correct.SES, Mon Mar 4 12:11pm
                      Sia: "Some who believe impeachment MUST be first before indictment and others who believe the order is NOT spelled out specifically ." The argument isn't that the order of impeachment-indictment... more
                      • Ooooh, Don't Play Fast And Loose...Amadeus, Mon Mar 4 3:32pm
                        ...there with the words. We already went over that it was only ONE reference that was specific about the order. Amadeus
                        • It's in both #65 and #69. Your bad.SES, Mon Mar 4 3:42pm
                          The Federalist Papers : No. 65 - "After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution ... more
                          • "Will Still Be" vs "Will Then Be"Amadeus, Mon Mar 4 4:01pm
                            Words have meaning. "Will still be" means that he already was "liable to prosecution and punishment in the ordinary course of law" but the state of being liable to such continued after impeachment... more
                      • She's not wrong, some do believe that.HeavyHemi, Mon Mar 4 12:33pm
                        And again, you're making claims about you you concede IS NOT in the Constitution. The full circle is you sitting on your thumb, spinning around.
                  • ...slam dunk to me is that in the Federalist Papers, Alexander Hamilton was trying to assure Delegates that a President would not be immune to punishment and removal from office, as the British King... more
                    • You Keep Repeating The Same Arguments...Amadeus, Mon Mar 4 3:34pm
                      ...even after they've been countered. I don't see a reason to keep repeating the counterarguments. You can go back and reread them if you've forgotten them. Suffice it to say that you are no more... more
                      • ...Hamilton DIDN'T Use "The President COULD BE indicted" to assure New York's Delegates that a President could be held to account for wrongdoing?
                        • Why Couldn't A President Be Indicted?Amadeus, Mon Mar 4 3:58pm
                          Why don't meteorologists tell us when it isn't going to rain orange juice? Amadeus
                          • ...what COULDN'T happen, as it is to expect a Weatherman to say "It isn't going to rain Orange Juice". It's as stupid to expect the Constitution, which contains VERY DETAILED INSTRUCTIONS on how a... more
                            • You're So Close...Amadeus, Mon Mar 4 10:16pm
                              Is the President a citizen? Yes. The President must be a citizen according to the Constitution. Are all citizens bound by the law? Yes, all citizens are bound by the law. Is the President, then,... more
                              • ...probably tell you to "P*ss off!" Since she thinks that "experts" "vehemently" and "enormously" disagree, you are not allowed to claim that you are correct... ...according to the Admin.
                                • Actually no she's not disagreeing with opinions.HeavyHemi, Tue Mar 5 12:31pm
                                  Here again we can read the posts and see that you are in fast being dishonest about the content of them. You have in fact claimed quotes that were not made to make your arguments. That is dishonest... more
                            • Nope, this is complete nonsensiscal babbling.HeavyHemi, Mon Mar 4 5:35pm
                              I mean if you understood whether the Constitution is prescriptive or proscriptive. Or perhaps if you quit conflating the concepts in your *arguments' in mid stride... You're really quite inept.
                    • Then you get even more silly by changing it to 'discussing facts' while using the word 'intent'. Do you have a dictionary?
        • Ad hominem attacks? Do you have a dictionary?HeavyHemi, Sun Mar 3 12:41pm
          Good lawd....when you 'went to college', did you have to take remedial English classes?
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