The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
As Mary Sarah Bilder says in the introduction to Madison’s Hand: Revising the Constitutional Convention, scholars have known for over a century that James Madison revised the notes he took during the deliberations in Philadelphia over the Constitution. So why write a detailed book on the Convention that then proceeds to include commentary on Federalist 10, the Virginia ratification debates, the First Congress, and the collaboration between Madison and Jefferson in the 1790s? What does all this breadth have to do with a revised reading of the Constitutional Convention?
Apparently there is, as it were, a “conventional wisdom” out there that Bilder, Professor of Law and Michael and Helen Lee Distinguished Scholar at Boston College Law School, is the first to debunk. “Scholars have shied away from exploring the significance of the revisions,” she writes. So what is their true significance? That Madison’s journal of the debates in the Federal Convention of 1787 failed to be “neutral” and therefore should not be invested with “iconic” status.
Far from being an exciting account of the dynamics of the founding of the first truly democratic republic created by reflection and choice, Madison’s notes are here turned into a series of self-serving, doctored revisions supplied as ammunition for the Madison-Jefferson Republican Party in its battles during the 1790s with Hamilton the monarchist. We learn that Madison was a bit “catty.” Bilder backs up this characterization by claiming, for example, that Madison did not include any notes on the Pinckney Plan. Apparently revisions matter, but not all of them; any made after 1800 somehow don’t rate, in her mind. The fact is, in his final version, in the 1830s, Madison did include the Pinckney Plan.
No wonder Hamilton’s high-toned June 18, 1787 intervention during the deliberations in Philadelphia acquires a prominent position in her work. (To be a bit “catty” myself, Bilder twice seems unable to remember the date in June that Hamilton gave the speech.) Apparently it does not matter that the speech had little actual impact on the delegates gathered on June 18. But can I say that with confidence? After all, the Notes have been doctored, haven’t they!
What is important to Bilder is that Jefferson thinks that Hamilton leads a pro-monarchy faction. So he needs Madison to alter the original text and emphasize the republican nature of the deliberations over the Constitution.
What about the famous June 6, 1787 speech by Madison calling for a democratic remedy to democratic problems that, in turn, anticipated Federalist 10? Isn’t that a legitimate part of the original conversation? Surely the case in favor of the commercial republic was not a subsequent concoction or a later intervention? Indeed Bilder says it was.
Well what about Madison’s essay “Vices of the Political System of the United States” —dated spring 1787, that is, before the Convention—which anticipated the June 6 speech? That too, says Bilder, was written later. “Madison’s talent lay in his remarkable facility to revise his analysis to support new political ends.” Most importantly, what these interventions show is that “Madison was not the intellectual founder of the Constitution.” The problem for Bilder is that Madison never claimed to be the intellectual founder of the Constitution. He claimed it was a group effort.
According to Bilder, Madison was not writing for posterity but for partisan and personal reasons at a particular moment in history. His journal is not a reliable and uplifting account of the creation of the Constitution prepared with subsequent generations in mind but a politically motivated, fraudulent alteration of the original record.
This is a book that claims it has no thesis, but rather is simply presenting a way of reading primary texts. By the end, however, the author leaves her reader with the thought that there is no primary Madison text worth considering on its own terms. Intentionally or not, Bilder has written a book that encourages Americans to doubt the worthiness of the Founding, and inches them one step farther toward concluding that the country was ill-founded.
There is an important sense in which this book appears about 30 years too late. It would have been an important addition to the debate during the 1980s over the status of originalism. Bilder’s contribution would have been to offer an originalist case against originalism. In other words, she could have said there is no such thing as an original text; there is instead a living text in the form of a constantly revised text. It really does seem that Bilder is trying to show that there is no authentic originalism. But that train left the station three decades ago.
In another sense, however, Madison’s Hand is very contemporary and in tune with race studies that were underdeveloped in the 1980s. Madison is nailed for his position on slavery—in non-originalist language, “enslaved persons”—but there is no original or reliable revised text to which a reader can turn to examine Madison’s positions because Bilder has belittled the accuracy of any of Madison’s texts.
So what are we to make of Madison’s reference on June 6: “We have seen the mere distinction of color made, in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.” This was added later, says Bilder.
Well what about Madison’s late August statement in opposition to the slave trade? Bilder’s response: he apparently borrowed a remark from Maryland delegate Luther Martin; besides, he knew the slave trade was coming to an end. To Bilder, the Notes implicate Madison in the creation of the “constitutional protection for slavery.” Madison’s invisible hand is replaced by Bilder’s heavy hand.
Let’s put Bilder’s study in context. There is the Madison Transcript Edition that went through several revisions between 1818 and Madison’s death in 1836. In his 1835 will, Madison stated that “considering the peculiarity and magnitude of the occasion”—meaning the deliberations at Philadelphia—he kept these copious records for “all who take an interest in the progress of political science and the course of true liberty.” Bilder does not mention this statement nor does she treat the revisions that took place between 1818 and 1836. Nor does she recognize that the Transcript is what Madison wanted to bequeath to posterity. The Transcript was edited first by Henry Gilpin and then by Jonathan Elliot, and one or the other version became the standard account of the proceedings of the Convention in the 19th century. The title of Madison’s coverage as edited by both Gilpin and Elliot was Debates in the Federal Convention of 1787, by James Madison, a Member. The word “Notes” was not in the title.
In the 1890s, two earlier versions of the journal were discovered: the Original Manuscript and the Revised Manuscript. Max Farrand chose the former as more authentic because it was closer chronologically to the Constitutional Convention but he added accounts by other participants, such as James McHenry, another Maryland delegate, to provide a more complete record. On the other hand, Adrienne Koch and others adopted the Revised Manuscript that represents Madison’s approved revisions between 1787 and 1817. They restored Madison to a position of prominence. And they made the appellation “Notes” popular.
So where does Bilder fit into this hardly monolithic picture? She adopts the appellation “Notes”; it fits her theory of Madison as a jotter and reviser. She refers to the scholarly disagreements in Convention studies concerning the two earlier editions and the Transcript Edition, but this comes in the book’s conclusion and is almost an afterthought.
So what happened to the monolithic conventional wisdom or “traditional narrative of the Convention” that she claims to be correcting? The whole argument is beyond the scope of Bilder’s project. She is interested only in the changes that Madison made between 1787 and 1799. So, if anything, she is criticizing Farrand’s Original Manuscript version for being insufficiently original. And she does so without proposing an original text of her own. Thus originalism—in any form—is a myth.
Will Madison’s Hand make its author a rock star, as in, we can never think of the Constitutional Convention the same way ever again? Its narrow conceptual and chronological focus would seem to militate against this. We still have Farrand, Koch, and Gilpin as competing original texts. As I said, she designates no alternative one of her own. And even now that we have her 1790s-eye-view, we still have the capacity to understand the importance of the big picture: Why study the American Founding? Can we grasp the drama of the arguments that took place during those four months in Philadelphia about federalism and the separation of powers—and can we sense their enduring importance rather than get bogged down in Bilder’s particularity of the moment?
Miring herself in the first decade of the new republic, Mary Sarah Bilder implies that the party politics of that era tell us all we need to know about the Constitutional Convention. Really?