Legal Notes by Arvind Datar: Federalist Papers and our Constitution

The Federalist Papers are a collection of 85 articles and essays that were written by Alexander Hamilton, James Madison and John Jay. This was to garner support for the ratification of the United States Constitution. It is often forgotten that the Federalist Papers were in response to a series of articles and public letters that were critical of the draft Constitution that was submitted for ratification by the States in September 1787. These articles are known as the “Anti-Federalist Papers” and were written between September and October 1787. 

Alexander Hamilton decided to defend and give a detailed explanation of the proposed Constitution to the people of the State of New York. Thus, the Federalist Papers began with a series of essays that continue to play an important role even today. It is reported that in the past four decades alone, the Federalist Papers have been cited at least 236 times in judgements of the US Supreme Court. Thus, they continue to be relevant in constitutional interpretation even after almost 250 years of their publication. Among the important papers that are relevant to our Constitution are the Federalist No.39, which gives a clear explanation of what constitutes federalism. Federalist Nos. 47 and 48 deal with the separation of powers. Federalist No.51 emphasizes the importance of checks and balances. These are papers by James Madison. Federalist No.78 by Alexander Hamilton emphasizes the critical importance of judicial review by the federal courts of legislative and executive acts. Our Constituent Assembly decided to adopt the Westminster model or parliamentary form of Government with the separation of powers. At the same time, the American influence was also clear from the provisions for fundamental rights, judicial review and federalist structure.

Over the last 75 years, the Supreme Court has referred to some of the Federalist Papers from time to time. Apart from explicit references, the underlying principles laid down by Hamilton and Madison have been echoed in several judgements, particularly those relating to the separation of powers and judicial review. This article refers to some of the important judgements that have cited some of these papers with approval.

In IR Coelho v. State of TN, (2007) 2 SCC 1, 86-87 at paras 64-65, the Supreme Court referred to Federalist Nos. 47, 48 and 51 in the context of separation of powers and Federalist No.78 on the independence of the judiciary. In Federalist No.47, Madison discusses the need for the separation of powers as propounded by Montesquieu. The remarkable words cited by the Supreme Court are:

“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty…. Again, there is no liberty, if the judicial power be not separated from the legislative and executive.”

The Court then referred to Federalist No.78, which points out the importance of the independence of the judiciary, particularly in a written Constitution. 

In Madras Bar Association v. Union of India, (2022) 12 SCC 455, 499-500 at para 23 and 28 (Nageswar Rao, J) relied on Federalist Nos. 47, 48 and 51 and also on Federalist No.78. Rao J. referred to Federalist Nos.47 and 48, which emphasize the need for proper distribution of powers, and on Federalist No.51, which underscores the need for proper checks and balances between the different departments of Government. Federalist No.51 has also been relied upon in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, 630 at para 36. 

In the challenge to the National Judicial Appointment Commission (NJAC), reliance was placed on Federalist No.47 to ensure the need for checks and balances.   

Finally, the Federalist No.51 was also relied upon to stress the importance of constitutional morality in Manoj Narula v. Union of India, (2014) 9 SCC 1 at para 75. This was in the majority opinion authored by Mishra, J.

Several memorable passages from the Federalist Papers are critical for the proper functioning of a republican democracy. In Federalist No.78, Hamilton famously pointed out that the judiciary was the least dangerous branch and reminded us that it has to be completely independent from the other two branches. Hamilton also emphasized that the will of the people, as expressed in the Constitution, would be supreme over the will of the legislation, because statutes might only reflect the temporary will of a segment of the populace. 

In the end, what is critical to the future of any republican democracy is to sustain the separation of powers, and above all, ensure the independence of the judiciary. Any short-term deviation from the principles set out in the Federalist Papers, and approved by the Supreme Court, only leads to long-term damage to the nation and to the Constitution.

Arvind P Datar is a Senior Advocate.