This Article examines the use of history in legal interpretation through an empirical analysis of one of the most prominent examples of historical evidence in law: citations to The Federalist in Supreme Court Justices' published opinions. In particular, the Article examines a phenomenon that has occurred frequently over the last two decades, but has thus far been virtually ignored: the citation by different Justices to the same historical source (such as The Federalist) to support divergent or opposing historical interpretations of legal meaning. Although the use of historical evidence in constitutional interpretation is itself much debated, The Federalist continues to be cited as binding or persuasive authority by scholars and judges.
Matthew J. Festa, Dueling Federalists: Supreme Court Decisions with Multiple Opinions Citing The Federalist, 1986-2007, 31 SEATTLE U. L. REV. 75 (2007).