Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
James Madison has a strong claim to be both the greatest political theorist among the Framers and the President who contributed most to that discipline. Federalist 10 by itself wins him a permanent place in the fundamental analysis of government. In a few pages, the essay offers a theory of the differences between small and large republics, the problem of factions in democracy, and the challenge of natural inequality to society. He also offered many other important insights, including his canonical defense of the separation of powers as pitting ambition against ambition. And he contributed so much to the deliberations of the Philadelphia convention that he has often been called the Father of the Constitution.
It is thus not surprising that his ideas are often invoked as authority for how to interpret the Constitution. But he is not nearly as good a guide to correct interpretation as he is to sound political theory. He was not a practicing lawyer and had a relatively limited legal education. In the words of the historian Mary Sarah Bilder, he was a “demi-lawyer.” For all his contributions to the convention, he was not put on the Committee on Detail that provided the penultimate draft of our fundamental law. That committee was the preserve of the truly great lawyers present at the convention like James Wilson, John Rutledge, Oliver Ellsworth and Edmund Randolph. Madison was simply not steeped in the legal traditions and interpretive rules of the time like these and other important practicing lawyers.
As Mike Rappaport and I suggest in a forthcoming paper, Madison’s lack of specialized legal knowledge may have freed him to be a innovator in his views of interpretation. For instance, he was one of the earliest to suggest that the Constitution was to be understood as a treaty, although the predominant analogy was to statutes or state constitutions. Strikingly, in the debate over the Bank of the United States Edmund Randolph, then the first United States Attorney General, appeared to reprove Madison’s use of some material from the ratifying conventions, even though both were opponents of the bank.
In short, he was at the center of many early debates over the Constitution, but his views often do not delineate the center ground. Madison is less reliable in capturing the consensus about the actual legal interpretive rules of the time that were deemed applicable to the Constitution. It is that positive meaning, including that constituted by such rules, that is the proper object of originalist inquiry.
And some of his concerns about interpreting the Constitution were quite misplaced. He was very worried about linguistic drift. For instance, in a letter to Sherman Converse in 1826 he wrote:
If the meaning of the text be sought in the changeable meaning of the words composing it, the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject.
However, this issue was already well understood by legal theorists, like Emer de Vattel, who recognized the legal rules that already addressed it by interpreting an old provision according to terms as they were understood as the time it was written. And linguistic drift is not a real difficulty for originalists. No one thinks that the phrase “Domestic Violence” in Article IV refers to spousal abuse!
Of course, we should not ignore Madison’s interpretive theories of the Constitution. These considerations do suggest that Madison’s interpretive ideas may deserve less weight than his contemporaries who were greater sages in the law. And when he comes up with strikingly novel ideas about interpretation, we should see how many of his contemporaries shared them before applying them to the Constitution. His authority is richly earned in political theory but less deserved in positive jurisprudence.