Kurt Lash (University of Richmond School of Law) has posted The Federalist and the Fourteenth Amendment—Publius in Antebellum Public Debate, 1788–1860 (Brigham Young University Law Review, Vol. 48, No. 6, 2023) (39 pages) on SSRN. Here is the abstract:
The Federalist Papers occupy a unique place among historical discussions of the federal Constitution. Internationally famous as a work of political science, the essays of “Publius” have particular importance to American constitutional theorists seeking insights into the historical meaning of the federal Constitution. The Supreme Court has cited the Federalist Papers in hundreds of cases, and for more than two hundred years every generation of constitutional scholars have debated and discussed the essays in countless books and articles. Despite their fame, modern scholars often question whether the Federalist Papers should be viewed as reliable guides to the original understanding of the Constitution. What scholars have not previously addressed, however, is the potential impact of the Federalist Papers on later constitutional development, in particular the framing and ratification of the Thirteenth, Fourteenth and Fifteenth Amendments.
This article takes the first step towards remedying this omission. The first of a two-part investigation of the role of the Federalist Papers in Constitutional Reconstruction, this essay presents the results of an empirical investigation of references to the Federalist Papers in antebellum and early Reconstruction public discussion and debate. The data reveal a robust and growing use of the Federalist Papers, both north and south, as the country spiraled towards civil war. This evidence suggests that the essays of Publius had a far great impact on antebellum Republican constitutional theory than legal historians have previously recognized.
Posted at 6:07 AM