Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize. While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article. I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.
The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is. If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem. By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.
Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach. Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution). An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.
If one is looking for the public meaning, why would one care about Madison’s Notes and their possible inaccuracy? Some people suggest logically it should not matter. But I think that is mistaken. Madison’s Notes could tell us a variety of things about the Constitution. They could tell us about:
(1) the meaning of words at the time,
(2) the interpretive rules that were employed,
(3) the legal system at the time in general,
(4) the values of people at the time,
(5) how different clauses were interpreted.
The essential point, though, is that there is nothing special about this information because it comes from the drafters. If we have similar information from equally learned and knowledgable people who were not at the convention and was published in a newspaper, that information would be equally important. There is nothing sacrosanct about the drafters. And the same holds for the ratifiers, even though their act make the Constitution the law of the land.
Thus, if Madison’s Notes are not accurate in certain places, that might mislead us. But as a practitioner of the original methods version of original public meaning, that does not tell terribly upset me. I don’t place tremendous emphasis on the Notes. Instead, I look to all of the evidence of the time – evidence from Ratifying Conventions, from newspaper articles, from letters, from dictionaries, etc. All of these pieces of evidence have problems, so it is not a big deal that Madison’s Notes also have problems.