The Federalist and American Constitutional Development

Session Submission Type: In-Person Full Paper Panel

Session Description

Our panel proposes to bring together several senior scholars to examine the continuing role of The Federalist in America’s political and constitutional development.

Jeremy Bailey’s paper explains how Tocqueville praised the Constitution as a Federalist victory that would temper what he saw as the inevitable rise of Jeffersonian and then Jacksonian democracy but, nevertheless, how Tocqueville offered, in many important respects, a strangely more Jeffersonian and Jacksonian reading of the Constitution. In addition to discussing Tocqueville on the question of presidential representation, Bailey's paper examines how Tocqueville's reading of Federalist No. 39 was shaped by Jefferson and his followers.

Kurt Lash’s paper offers an empirical investigation of the role the Federalist Papers played in antebellum legal and political discussion and in the debates of the Reconstruction Congress. Lash contends that given the wide spread acceptance of the Federalist essays as authoritative guides to constitutional meaning at the time of Reconstruction, and the widespread publication and dissemination of antebellum and Reconstruction speeches and debates citing the Federalist essays, it may be that The Federalist Papers had a greater influence on the public’s understanding of constitutional change in 1868 than they did in 1787-88.

Vincent Phillip Muñoz’s paper explains the relevance of Federalist 10 for current debates over the original meaning of the First Amendment’s Free Exercise Clause. Challenging the conventional originalist wisdom, Muñoz contend that Federalist 10’s argument does not work with religious exemptions and, therefore, a Madisonian construction of the Free Exercise Clause would uphold the Supreme Court’s much-disputed precedent, Employment Division of Oregon v. Smith.


Chair:
George Thomas, Claremont McKenna College

Papers:
Jeremy Bailey, University of Houston
“Tocqueville's Jeffersonian Reading of the Federal Constitution”

Kurt T. Lash, University of Richmond Law School
“Publius in the Thirty-Ninth Congress”

Vincent Phillip Muñoz, University of Notre Dame
“James Madison’s Politics of Religious Liberty: Federalist 10 and Religious Exemptions”

Commentators:
Justin Dyer, University of Missouri
Benjamin A. Kleinerman, Baylor University

Sub Unit

• Division 56: American Political Thought

Cosponsor

• Division 1: Political Thought and Philosophy

Individual Presentations

• Tocqueville's Jeffersonian Reading of the Federal Constitution - Jeremy D. Bailey, University of Oklahoma

• Publius in the Thirty-Ninth Congress - Kurt Lash, University of Richmond

• James Madison’s Politics of Religious Liberty - Phillip Munoz, University of Notre Dame

• The Proleptic Constitution: The Federalist and Constitutional Development - Connor Ewing, University of Toronto

Chair

• George Thomas Claremont McKenna College

Discussants

• Benjamin A. Kleinerman Baylor University

• Justin B. Dyer University of Missouri, Columbia