Civics In A Year
What do you really know about American government, the Constitution, and your rights as a citizen?
Civics in a Year is a fast-paced podcast series that delivers essential civic knowledge in just 10 minutes per episode. Over the course of a year, we’ll explore 250 key questions—from the founding documents and branches of government to civil liberties, elections, and public participation.
Rooted in the Civic Literacy Curriculum from the Center for American Civics at Arizona State University, this series is a collaborative project supported by the School of Civic and Economic Thought and Leadership. Each episode is designed to spark curiosity, strengthen constitutional understanding, and encourage active citizenship.
Whether you're a student, educator, or lifelong learner, Civics in a Year will guide you through the building blocks of American democracy—one question at a time.
Civics In A Year
Constitutional Interpretation: Why Judges Still Turn to Hamilton, Madison, and Jay
Why do Supreme Court justices turn to 235-year-old political essays when deciding modern cases? This riveting exploration with Dr. Sean Beienberg reveals how the Federalist Papers continue to shape constitutional interpretation centuries after their publication.
The Federalist Papers serve a dual purpose in today's legal landscape. First, they explain the Constitution's institutional design, where the document remains sparse. Dr. Beienberg notes, "They do a terrific job articulating and explaining the logic, institutional design, and purposes of those institutional arrangements." Even Alexis de Tocqueville recognized their explanatory power, often deferring to them in his analysis of American democracy.
More significantly, these essays represent what many consider the closest window to the Constitution's original understanding. This connection has fueled their comeback in judicial circles, particularly as originalism—interpreting the Constitution based on its original meaning—has resurged since the 1970s. Madison believed constitutional interpretation should focus not on drafters' private thoughts but on what ratifiers believed they were approving, making the Federalist Papers invaluable evidence of founding-era understanding.
Perhaps most fascinating is how these documents transcend today's political divides. While originalism is often associated with conservative jurisprudence, progressive icon Hugo Black was also considered a great originalist justice. This creates unexpected connections across ideological lines, with Justice Thomas sometimes citing Justice Black despite their opposing political philosophies. Even among originalists, approaches differ—Thomas prioritizes original understanding above precedent, while Scalia balanced the two—demonstrating the nuanced ways these historical texts continue to influence American law.
Have you considered how documents from the 18th century might still shape your rights today? Subscribe now to continue this journey through America's civic foundations.
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School of Civic and Economic Thought and Leadership
Welcome back to Civics in a Year. Today we are kind of finishing up our Federalist Papers run that we've had and we have Dr Sean Beinberg back with us. And Dr Beinberg, our question today is why is it that judges, legal scholars, still reference the Federalist Papers in court decisions? Because they're not governing documents, but there is still references to the Federalist Papers.
Speaker 2:You're absolutely right that the Federalist Papers are indeed a very frequently cited text in a constitutional adjudication by judges and legal scholars, and that's not to say that they haven't been cited before, but this is actually something that is increasingly frequent, where the Federalist Papers are increasingly a sort of a core capstone in terms of judicial interpretation in the last few decades, whereas they'd fallen out of favor for a while, and that largely is a consequence of two things. So, as we talked about before, the Federalist Papers are one just a brilliant set of interpretive analyses of the constitutional text.
Speaker 2:That is to say they understand the Constitution very well, whereas the Constitution as a governing document is very sparse in many ways. The Federalist Papers do a terrific job sort of articulating and explaining the logic, the institutional design, the purposes of those institutional arrangements. This is why, for example, alexis Tocqueville in Democracy in America basically says in footnotes just go read the Federalist Papers. They do this better than I can do. There are a few places where Tocqueville actually articulates things a little more clearly than the Federalist, I think because in some sense not unreasonably they have certain background assumptions in mind. We've talked before about how they don't really define executive power very carefully because they all kind of like look around like we know what the executive power looks like, whereas Tocqueville has a little bit more distance to then feel the need to go and explain some of that. So Democracy in America also does a really good job of explaining a lot of that as well. So there's just an element of. It's a very eloquent articulation of the logic of the Constitution. The other reason is that the Federalist is arguably the most effective or clearest articulation of and the legal scholars would sort of pick this apart here with the nuances but something akin to the original understanding or the original intent of the Constitution. I will spare you folks the arcana of like high-level constitutional theory, but the basic idea of one of the main canons of constitutional interpretation which was really really popular and basically one of the main canons of constitutional interpretation which was really really popular and basically one of the main ways people did constitutional interpretation pretty much through the 1930s. It wasn't exclusively but it was one of the mainstream measures of doing that is, trying to understand basically what the text was supposed to do at the time that it was written. How is this understood? There's a little bit of nuance between whether you care more about what the writers and the drafters wrote versus the sort of popular understanding. But that was really what legal interpretation did for most of American history. It falls off in the 1930s, through the 70s or 80s.
Speaker 2:It gets sort of brought back, particularly under the term originalism. If you sort of go back and read legal cases, they're clearly articulating this sort of basic idea of like what did the convention think that they were ratifying? What are these words supposed to be doing? So the term but conservative leaning justices and judges. There's a greater interest in originalism. And if you're doing that, then again in the Federalist Papers, as we've talked about before. Not everybody in every state was reading them, but they're sort of a nice collection of the understandings that were being discussed about. If you sign your constitution it's going to do X, y and Z. Here's what we're trying to do with that. So they serve as, probably after contemporaneous, like dictionary definitions or something to understand what a phrase means or maybe other sort of contemporary legal cases. But they're one of the best sources of text that one can look to in trying to understand at least for those who care about such things sort of what the generation drafting, writing, ratifying and serving, working with this constitution thought it meant at the time.
Speaker 2:And this is one little other sort of con lie articulation on this. So James Madison, for example, was always defending originalism as the proper way to do constitutional interpretation. But he said and this is quite interesting that you don't care so much about what the drafters privately thought they were doing. So Madison actually resisted releasing the records of the Constitutional Convention because he said nobody really knew what our sort of private thoughts were. Nobody was signing off on that. What matters, he says in a few letters and texts and speeches he gives, is basically, what did the people signing the dotted line think that they were signing? That's how you do a lot of other contract law, but sort of what did the people think they were agreeing to? That's what we should continue to be bound by, and so the Federalist Papers, like some of the other ratifying convention debates, serve as a really good articulation of that. Again, they're not complete in every feature. There are places where they're not commenting on a problem. A problem comes up that they weren't anticipating and discussing.
Speaker 1:But they're pretty thorough in describing a lot of the institutional arrangements, but they're pretty thorough in describing a lot of the institutional arrangements Is there because I know that there are justices and judges who kind of stick with the originalism, the original meaning of what the Constitution was saying? Are they more likely to utilize things like the Federalist Papers in their writings?
Speaker 2:Certainly they are and again I said that that's particularly, but not exclusively common among more conservative justices. Arguably one of the greatest originalist justices in US history was Hugo Black, who was regarded as one of the most progressive justices. His interpretations of the Commerce Clause he wasn't being that probably originalist on that and a few other places in some ways, but very, very aggressive in trying to understand, particularly on civil liberties issues, I would say, the original understanding. Now the Federalist Papers are not very good for civil liberties issues because the Bill of Rights obviously post-dates the discussion in the Federalist. But originalism as a methodology is not exclusive to conservatives.
Speaker 2:It's worth noting that, but which creates kind of an interesting thing where you have Clarence Thomas citing Hugo Black, who one is coded as the right-wing most justice and the other one is probably the second most left-wing justice of his era. But yeah, as folks who are originalists are certainly the ones that are going to be interested in the most, but they're not the only ones that cite it. I mean, other justices who would not define themselves as primarily originalist will still make originalist arguments and they will still invoke the Federalist, for example. So constitutional interpretation, you know there are lots of different parts of it and even within judges who have similar philosophies they'll rank things a little differently. So just as an example of that, you know what do you do if there's a tension between the original understanding as articulated in the Federalist, versus precedence right. So even judges who would both describe, who describe themselves as originalists will sort of weigh those differently.
Speaker 2:Clarence Thomas and Antonin Scalia famously debated quite extensively on this, whereas Thomas would always say look, the original understanding of the Constitution is the highest value. If there's a bad precedent, I don't care how many decades of precedents are bad, how many precedents are bad Like my oath is to the Constitution, whereas Scalia would say well, we're this mixed sort of common law and constitutional thing, so we have to be deferential to precedent. So the Federalist Papers are not an immediate conversation winner, other than maybe for Clarence Thomas. But even somebody who's not affiliated, associated with originalist perspective will generally still find the federalist papers at least, if not, you know, knock down immediate conversation under a major piece of evidence of constitutional understanding.
Speaker 1:Fantastic, Dr Beinberg, as always. Thank you.
