Aaron Zelinsky: Misunderstanding the Anti-Federalist Papers
Aaron Zelinsky (University of Maryland Francis Carey School of Law) has posted Misunderstanding the Anti-Federalist Papers: The Dangers of Availability (Alabama Law Review, Vol. 62, No. 5, 2012) on SSRN. Here is the abstract:
In recent years, the Supreme Court’s use of the Federalist Papers has received much scholarly attention, but no analysis has focused on the Court’s use of Publius’ lesser-known sibling, the Anti-Federalist Papers. This Article undertakes the first systematic analysis of the Court’s use of the Anti-Federalist Papers and concludes that the Supreme Court has misused the Anti-Federalist Papers as a source of original meaning by treating all Anti-Federalist Papers alike when they are actually of differing historical value. Increasingly, the Court treats little-read Anti-Federalist Papers written by unknown authors identically to the widely reprinted writings of those Anti-Federalists present at the Constitutional Convention and prominent in the ratifying debates.
The Court’s confusion of availability with authority is not unique to the Anti-Federalist Papers. Rather, this confusion represents an under- examined pitfall in the process of canon formation: the dangers of increased availability. In 1981, Herbert Storing published a "complete" volume of Anti-Federalist Papers, including many little-known Papers with relatively low historical impact. Almost immediately, members of the Court cited many of these marginal papers alongside the words of prominent founders, confusing contemporary availability for jurisprudential authority. Storing’s 1981 publication effectively served as a controlled experiment: documents which were uncirculated for two centuries were suddenly made widely available in a single volume. Studying the impact of the publication of these documents and the uses to which these documents were put provides insight into the larger challenges posed by increased availability in the modern era.
This Article uses the Anti-Federalist Papers as a case study for examining three unrecognized dangers which arise from increased availability, which it labels flattening, cherry-picking, and snowballing. Each of these dangers is illustrated with an example from the Court’s use of the Anti-Federalist Papers. This Article then examines two other circumstances where the dangers of availability have been realized: the cherry-picking of IRS private revenue rulings and the snowballing of unpublished opinions. As electronic databases continue to proliferate and information thus becomes more easily available, the dangers of availability will continue to grow. This Article concludes by proposing ways that scholars, judges, and lawyers can avoid the dangers of availability.
(Via Larry Solum at Legal Theory Blog).