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The Polylingual Constitution

In a pair of posts for Law and Liberty, I argued that public meaning originalists are not doing a good job of communicating with those beyond their narrow circle—neither the public at large nor scholars in other disciplines. John O. McGinnis and Michael Rappaport both honored me with a response, and both responded with their own version of: while that may be true, it’s not important.

But this indifference to historical expertise beyond the confines of legal history, I still believe, will harm their credibility among the general public and among other experts. I had pointed out that attempts to malign the Framers of the Constitution (in particular, the recent book by Mary Sarah Bilder) will ultimately damage originalism in the minds of a more popular constituency, many of whom harbor originalist sympathies because they admire the Framers.

McGinnis expresses skepticism. Since the public pays little attention to scholarly debate, he says, this claim is akin to saying that “Einstein’s theory of relativity changed everyone’s understanding of basic reality.” He believes instead that “The public is likely to think of the Framers much as they did before Bilder’s book.”

Theories Filter Down

This might be right. Then again, it might be short-sighted. When Woodrow Wilson wrote in 1908 that the Constitution should follow the model of Charles Darwin, rather than being read in the light of Isaac Newton, probably no one but egghead political scientists or legal scholars paid attention. At first. But flash-forward a century, and on today’s college campuses, there’s hardly a student walking into an American politics class who does not assume from the outset that we operate under an elastic “living Constitution.” These students are surprised to learn (if they ever do learn) that the phrase “living Constitution” was a conscious attempt to alter previous understandings of the Founding charter, coined more than 100 years after that charter was ratified. Over time, Wilson’s scholarly theories ended up dramatically shifting the public’s perception of the Constitution.

Ideas have consequences. And while we never know in advance which ones will become consequential, it is both wise and prudent to get them right at the outset.

A falsehood, after all, can get halfway around the world while the truth is still putting on its boots. In the fall of 2015, Bilder first published allegations that James Madison falsified the most authoritative records of the Constitution’s framing. Within months, the Washington Post declared in a headline that Madison had “doctored” his Notes, and Saul Cornell similarly described these claims as an “indisputable fact.” Within a year of its publication, Madison’s Hand had won the Bancroft prize, and Michael Klarman not only repeated many of Bilder’s charges against Madison in his 2016 popular history, The Framers’ Coup, he even exaggerated some of them. At this rate, it should not take long before the history textbooks propound that the “Father of the Constitution” was a self-serving liar. Above all, this claim should be combatted now on the grounds of its falsity. As a secondary consideration, originalists ought to ponder whether the anti-originalists’ campaign to damage the public’s perception of the Framers would not also impede acceptance of originalism. Why should the path of this falsehood be made smoother by indifference to the veracity of historical claims?

The Legal Experts’ Bailiwick?

Both McGinnis and Rappaport stress the need to appeal to the people who really matter. Rappaport believes I have failed to appreciate, as he puts it in the title of his post, “The Importance of Experts.” He goes through the history of originalism’s growing pains, when originalists’ initial theories were easily punctured by criticisms coming from leading intellectuals. Originalists, he argues, need to be able to formulate a methodology that can withstand such attacks.

On the face of it, there is nothing in his strategy to dispute. But there does seem to be something more under the surface. Is it not the case that by “experts” he means “experts in the law”? What is implicit in Rappaport’s post is explicit in McGinnis’ post and in the April Liberty Forum essay they coauthored, “The Legal Turn.” In the essay and the posts, it seems they would defuse any potential criticism coming from outside their own discipline by establishing at the outset that the expertise of other scholars, especially historians, is simply not relevant to what they do.

Yet as I say, there are perils ahead in developing an originalist theory that only a legal expert could love. As it happens, there are experts in other fields, such as political theorists and historians, who might also lay a fair claim to understanding the original meanings of the Constitution. And some of them might begin from a posture that is neutral: neither friendly nor hostile toward originalism. By alienating them from the start, “Legal Turn” originalists perhaps believe that they are employing a prudent strategy: win the battles on the home front first (the all-important constituency of lawyers and legal academics); worry about foreign engagements (potential attacks from historians and political theorists) later.

Possibly. Still, any theory that develops under such parochial circumstances will be ripe for debunking. It will be vulnerable for the simple reason that practitioners within any single discipline, working in isolation, naturally become too blinkered by their own interests and biases. When the Legal Turn is examined by experts in other disciplines, the exaltation of legal expertise may well come across as nothing more than a way to privilege the lawyer’s skills over all others when interpreting the Constitution, a privilege which would devolve considerable power on the legal establishment.

When McGinnis and Rappaport assert that the Legal Turn uses “the majestic resources of the law to interpret and construct the Constitution,” they set aside the contributions of historians as irrelevant. They also seem to be echoing Justice Brennan’s declaration that he finds meaning in the Constitution’s “majestic generalities and ennobling pronouncements.” After all, a power grab might seem to bear the mantle of legitimacy if trimmed in majesty’s ermine.

Political Patois of Legal Language in America

The Constitution, McGinnis and Rappaport contend, was written not in ordinary language but in legal language; therefore, one must be fluent in the latter in order to interpret it correctly. Thus legal history is the only kind of history necessary for understanding the original meanings of the Constitution.

There are at least two major problems with that argument. In the first place, if the original meanings of some constitutional terms—even indisputably legal terms that had a history prior to the Constitution—were ever “fixed” during the American Founding, then that fix happened within the political discourse of day. The legal history of these terms, insofar as it existed, was often not determinative. In the second place, not all of the Constitution was written in legal language.

Let me offer an example of a legal concept that was settled politically. In New York Times v. Sullivan (1964), Justice Brennan spoke of the “broad consensus” that the Alien and Sedition Acts, passed under John Adams’ administration, had been unconstitutional. And there was indeed a broad consensus on that point, so long as one looks anywhere except to the legal history.

The Courts under the Adams administration were merrily prosecuting journalists for seditious libel, interpreting the “freedom of the press” under an earlier common law understanding that limited the meaning to a prohibition on “prior restraint” of printers. According to the legal language at the time, the Alien and Sedition Acts were constitutional. But one reaches the opposite conclusion by looking to the political history of the time: for instance, James Madison’s legislative Report of 1800 (defending the equally legislative Virginia Resolutions), or the subsequent presidential pardon of convicted journalists (which Thomas Jefferson defended on constitutional grounds), or even the electoral wave that swept the Federalist Party from office in 1800 (which Madison later explained was the community’s decisive rejection of the interpretation of the Constitution defended by the Federalist Party). The political history teaches us that the admittedly legal expression, “freedom of the press,” protected journalists from such prosecutions.

Americans were consciously giving a makeover to many traditional legal terms in Revolutionary- and Federalist-era America, and they were doing so within political discourse. If it is true that the meaning of these clauses was “fixed” at this time, then this occurred within the legislative halls and through the debates conducted by citizens, not in a courtroom or a lawyer’s brief. Even the legal language of the Constitution often has a political patois.

Monolingual

As to the second major problem I mentioned, when it comes to those parts of the Constitution that aren’t written in legal language, the legal history is even less apt. There are at least two times when Madison argues that the Constitution must not be read in light of prior precedent, and the context of each is revealing. In the first, Madison (as Helvidius) argues, contrary to Alexander Hamilton (as Pacificus), that past definitions of executive power, such as those found in John Locke and the Baron de Montesquieu, are not authoritative when investigating the scope of executive power in the U.S. presidency. In the second, an 1830 letter to Nicholas Trist, Madison argues that, when determining questions of federalism, past examples and theories will only mislead; the Constitution must “be its own interpreter.”

These examples, presidential power and federalism, are important because, as is the case with freedom of the press, the Americans were self-consciously departing from older models in significant ways. With the American presidency and American-style federalism, the Framers of the Constitution had literally invented new political concepts, and these could not be understood properly by looking to past executive authorities or federal arrangements.

It also must be kept in mind that the Constitution, when addressing presidential power or federalism, is not speaking a legal language but  the language of power—which is to say the language of politics. Politics was Madison’s mother tongue (although, as a renowned polyglot, he was also fluent in legalese and the classics).

Judges must possess sufficient fluency in the language of power when determining the meaning of those political clauses within the Constitution. For instance, when Article II states simply that “the executive Power shall be vested in a President,” what did that generation mean by “executive power”? When Article I, Section 8, empowers Congress to tax for the “general Welfare,” do those two words (which have a political history—see the Articles of Confederation) broaden the scope of congressional power? Or is it possible that they were inserted to limit that scope? In such cases, courts must render judgments about the degree of power properly exercised by these branches; looking to William Blackstone, common law, or prior judicial decisions will be of no help. According to Madison, even looking to prior political theorists or political arrangements will be as likely to mislead the interpreter as to lead him aright. A different kind of interpretation is needed.

The historical research that McGinnis and Rappaport describe in “The Legal Turn” is a valuable and necessary condition for understanding the original meanings of the Constitution. But few outside of the world of lawyers and legal scholars could possibly deem it sufficient. Admittedly, there are individual clauses that had a long history prior to the Constitution’s framing and that were adopted by that generation with little or no alteration, such as “habeas corpus” and “due process of law.” The monolingualism of “The Legal Turn” is no doubt sufficient for navigating original meanings when traversing that limited terrain. But what about the rest of the Constitution?

Reader Discussion

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on June 20, 2018 at 08:07:06 am

Lynn Uzzell makes a straightforward argument abundantly supported by common sense and logic: that the study of history and the correct, non-ideological writing of it and the debunking of bad history are important, if not vital, to the explication and defense of Constitutional Originalism and that accomplishing that multivalent project requires pursuing in-depth knowledge and understanding of the history of the Founding, all of the Founders and all who wrote and spoke to influence, assist, resist, support or oppose the drafting and the ratification of the constitution and all who debated and voted on its approval in Philadelphia and its ratification in the state conventions and all who were engaged in the drafting, debating and the Congressional approval and the states' adoption of the Bill of Rights, and the historical meanings and understandings in common, professional and political parlance at the time they used them of the legal, political and non-legal and non-political words they used and the words that were commonly associated with the words they used at the time they used them.

That Uzzell would have to defend against the legal academy such obvious, common-sensical, self-evident propositions is testament to the psychological propensity of lawyers qua individuals towards self-seeking, the economic propensity of the legal profession towards monopoly, and the academic propensity of the legal academy towards priestly control of the powers of incantation.

Just a thought from a lawyer who has read a lot of history: As for "the public pays little attention to scholarly debate" argument of the lawyers against the need to debunk bad constitutional history, it is rubbish and anyone who reads history and political science knows it. French philosophes and Rousseau paved the way to the French Revolution. Anyone (certainly any professor) who has read the Bible and the history of Christianity, the writings of Martin Luther, Thomas Paine's "Common Sense," the writings of Lenin, Hitler's "Mein Kampf," Richard Weaver's "Ideas Have Consequences" or Eric Hofer's "The True Believer" knows that ideas have consequences.

To think that bad history about Madison's Notes will have no bad consequences for Originalism is so naïve as to deny the street-fighting skills of the Democrat Party and its ideological advocates in the academies and the propaganda expertise of their media facilitators, all of whom will do what is necessary to destroy Originalism. The political stakes are too high for them not to pursue lethal means.

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Pukka Luftmensch
on June 20, 2018 at 09:03:28 am

Amen to that!

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Mark Pulliam
on June 20, 2018 at 09:24:28 am

"As for “the public pays little attention to scholarly debate” argument ..."

McGinnis may be *technically" correct in this assertion. WHAT he fails to recognize is that the general populace while either unaware, unconcerned or, perhaps, dismissive of "scholarly debate", nevertheless receives the *filtered*, i.e. manipulated version(s) of this scholarly debate. It is filtered through the media appendages of the Democrat party (and Republican Party as well, albeit not so effectively); it is further filtered (diluted / polluted) by the 2nd level intellectuals that serve as mentors to the young impressionable minds in their care at university and high school. Indeed, with the advent of (pre)K-12 education funding, it begins prior to the young mind ever having heard of the constitution, nor much caring. There is no shortage of anecdotal evidence of this. consider only what young minds are exposed to by their *educators* - most of whom are themselves 2nd or 3rd hand expositors of legal theory that is beyond their understanding.
In such circumstances, what should one reasonably expect as a pedagogical outcome? Clearly, it has resulted in the "debunking" of both the Framers and the US Constitution AND our HISTORY. No, what is now the received wisdom is simply the (as some other commenter has said) regurgitated effluences partially digested by third parties, having received it from a second level intellectual / academic and producing the inevitable pungency of stilted debate and partisanship.

While McGinnis, Rappaport and others are quite correct that COTUS is written in the "language of the law", and they acknowledge that some common sense understanding of the text is appropriate, they, at times, would appear to be dismissive of the "history" behind it, of the exquisite craftmanship of (as I call them) The CRAFTERS of COTUS who apprehended and comprehended history, philosophy and, yes, religious inputs and forged a rather exceptional foundational document. To assert that the public pays little attention to COTUS debates and thus history, even bad history, is not a significant factor in popular understanding is indicative of a "closing of the [legal] mind and represents, I think, a missed opportunity successfully counter the media / academy monopoly on popular constitutional *thinking*.

As Pukka has mentioned above - look only to history to observe the distortive efficacy of "trickledown" pedagogy.
Do not dismiss "bad history" ( in fact, *horrid* history) as unimportant.
Rather, we should consider all INPUTS into what now constitutes "The Common Mind" (a great book, BTW)
The p

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gabe
on June 20, 2018 at 12:31:33 pm

I just finished Deneen's "Why Liberalism Failed" and could find hardly a word I could disagree with. To the extent McGinnis and company conflate the "founding intent," that is to say the intent of those who turned out to vote for the ratification of the Constitution, with the "Framers' intent" as evidenced by exacting analysis of their contemporaneous writings; and to the further extent that Deneen's savage criticism of both classical and progressive liberalism is accepted; then McGinnis and Rappaport's brand of originalism has no future at all. Their theory of constitutional interpretation will be like Sir Robert Filmer's defense of the monarchy in "Patriarcha" published in 1680 at the very moment the notion of an absolute monarchy was writhing on its death bed in England.

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EK
on June 20, 2018 at 20:12:10 pm

I'm impressed that you "could hardly find a word" of disagreement with Deneen's book. You and Mrs. Deneen may be unique in that regard since he seems to have incurred both the wrath and the praise of both the Left and the Right.
Yet, how does Deneen's criticism of liberalism negate constitutional originalism? What has originalism to do with Deneen's theme of the futility of America's desire to regain control of the administrative state, to reset their community and economic moorings in a global economy, and to reestablish control of their cultural norms?

I'm not arguing with you. I just don't understand your point.

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Pukka Luftmensch
on June 21, 2018 at 11:45:41 am

I assume you haven't read "How Liberalism Failed." Deneen argues that classical liberalism and progressive liberalism are the two side of the same coin and liberalism exhibits the same totalitarian drive as the other two -isms, communism and fascism. They all exhibit the same pattern of destroying local institutions and associations and shifting individual loyalties to the central government. I read Deneen as saying the shared sovereignty between the state and federal governments established in the Constitution, "imperium in imperio," is impossible and in the end there can be only one. Accordingly, Madison was wrong to imagine that it could survive although it had a pretty good run between 1800-1900.

Deneen does not make that particular argument but it is implicit when he goes on to argue that classical liberalism in all its manifestations is collapsing in much the same way as the USSR collapsed, from within. Here I will observe that the Peoples Republic of China avoided collapse after the Proletarian Cultural Revolution, perhaps that was because the communist party in China was able to radically reform itself after Mao died in 1976.

Deneen identifies the basic natural political unit of self-governing republican democracies as a community about the size of a town and argues that the pre-liberal model of representative government where local jurisdictions enjoyed enormous autonomy from both the provincial and imperial governments (and after the Revolution the state and federal government) and where elected rulers actually were directly accountable to their constituencies was best for all concerned.

Deneen has a good deal to say about how the now obvious consequences of the liberal ideals of unrestricted pursuit of both profit and individual autonomy, now taken their logical conclusion, have resulted in an aristocratical government that responds only to the interests of the emerging class of aristocrats and, further, that the cult of liberalism has now assumed the metaphysical trappings of a religion with no tolerance for heresy.

The obstacles to reforming this Leviathan are enormous and likely intractable because all of the local institutions that made the formation of the Republic possible in 1789 have been destroyed. Before I read Deneen, I thought that things were not all that bad and that maybe we were in no worse position than Coke and the Parliamentarians in 1628. I think I was wrong, we republicans may be the same position we were in when Elizabeth I assumed the throne in 1558. Deneen has no opinion about what comes next.

In my own opinion, the old model died a hundred years ago and what can be salvaged depends upon unpredictable events in the future. The originalism advocated by McGinnis and Rappaport assumes that Supreme Court can be gradually reformed, perhaps over the next 100 years or so. I don't think that will happen as the current events clearly show that the classical and progressive liberals who have profited mightily from the existing regime will tolerate no revisionism.

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EK
on June 21, 2018 at 14:05:26 pm

Thank you for that excellent synopsis of Deneen's book. Saves me the cost of buying the book and the principled pain of contributing to the Bezos Fund for Anti-American Propaganda.

Now, that I understand your contention about the relationship between Deneen's thesis and Originalism, I think it would be accurate to say that Deneen (and you) do not argue that constitutional originalism is invalid on principle, but rather, that on grounds of political pragmatism and legal realism it is an exercise in futility., it won't prevent collapse.

In that regard it is of a piece with other bleak conclusions which I had understood were part and parcel of Deneen's argument. I.e., "the futility of America’s desire to regain control of the administrative state, to reset their community and economic moorings in a global economy, and to reestablish control of their cultural norms."

Assuming arguendo that Deneen's end-of-times cynicism is correct, that culturally, politically and morally "we're doomed" ( as Janeane Garofalo used to say on SNL,) is forestalling the apocalypse not worth the effort? More "originalism" is surely better than more judicial oligarchy as we await the collapse. Augustus did purchase 100 years or so of peace and prosperity as Rome hurtled toward oblivion.

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Pukka Luftmensch
on June 21, 2018 at 15:08:24 pm

On the point of Rome, I'd say we're closer to the reigns of Diocletian and Maximian (ca. 284-310 CE) and the crisis of the third century than to the first century and Augustus Caesar.

The old order may well be doomed but that doesn't mean we're all doomed. Deneen only suggests we have to realize we are going to have start rebuilding from a point much further back that I ever imagined. In this sense, Jordan Peterson is something like a combination of St. Paul and John Lilburne.

While reading the book I kept thinking that the subtitle should have been something like "An Arrow Against All Tyrants" or "America's Chains Revealed" but then I'm big fan of mid-16th C. Leveller republican polemics.

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EK
on June 21, 2018 at 16:23:11 pm

Pukka and EK:

Deneen makes an interesting argument. However, at least to my mind, he fails to account for the firmly held belief of The Crafters of COTUS and the American Regime that not only was virtue an essential precondition for a successful republican regime (aka classical liberal) but that Madison, Hamilton, Washington et al not only structured the regimes forms and mechanisms but also fully advocated and supported *governmental inducements" (both positive and negative) to virtue.

Missing this, Deneen follows his own *incomplete* thesis to what is seemingly its logical conclusion, i.e. that the classic liberal appeal to liberty is destined to lead to dissolution. It all makes sense within the confines of his incomplete "observations' of the Framing Generation.

Frankly, I think he is wrong!

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gabe
on June 21, 2018 at 16:27:41 pm

And here is proof of my assertion (and The Crafters) that virtue is required to forestall dissolution. Just read the headline of the article. It says it all.

https://pjmedia.com/lifestyle/sex-worker-seeks-to-destigmatize-sex-work-in-society-um-no-thanks/

Sex workers to be legitimized AND THEIR CLIENTS should be able to have their *ministrations* covered by HEALTH INSURANCE.

Now THAT is dissolute behavior, kiddies. Ha!

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gabe
on June 21, 2018 at 17:40:09 pm

Gabe and EK,
I agree with Gabe's point and see "public virtue" 1) as central to the Founders' conception of America's constitutional republic (as well as central to their hopes for its success) and 2) as the missing link between then and now, its absence being the cause of the ensuing moral morass of modern liberalism which Deneen (and we) deplore. I see Deneen as primarily a moralist who has missed an essential point in lambasting the Founding, that civic morality was the foundation of the Founding. BTW: I do not see the Federalists (and they were the Founders) as classical liberals and do not see classical liberalism as essentially concerned with public virtue, but rather with individual liberty, which was never the focus of the Federalists.

To me it's no mystery what went wrong ( whether or not, as Deneen maintains, classical liberalism and modern liberalism are two sides of the same coin): in the late 19th/early-mid 20th century the centripetal (community destabilizing) economic forces of explosive capitalism combined with the morally dis-integrating proclivity inherent in Jeffersonian liberalism (classical liberalism) and by the 1960's we ended up chasing license and believing (to paraphrase John Milton) that license meant liberty. At the heart of the moral descent was the atrophying of religion, a decline exacerbated both by the two centripetal/dis-integrating forces discussed above and by the concurrent rise of Progressivism in government and scientism rather than civic virue in public opinion.

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Pukka Luftmensch
on June 22, 2018 at 11:21:20 am

Well, no one ever faulted classical liberals for their rhetoric. It's their deeds and hubris that always got them into trouble. My understanding is that the Federalists' three terms from 1798 to 1800 were a disaster as far as the electorate were concerned, although Hamilton's speculator friends made out like bandits. It is my further position that the Democratic-Republican settlement imposed by Jefferson and Madison in 1800 did hold the Federalist/Whigs in check until the Progressive movement.

Like the instruments of darkness, classical liberals win us with honest trifles (their words) in order to betray us in deepest consequence (their deeds). As the old republican revolutionaries liked to say "acta non verba."

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EK
on June 22, 2018 at 13:23:28 pm

Quick note. I haven't yet come to the part of Klarman's book where he amplifies Bilder's shaky claims of Madison's unreliability in the Notes. But i just feel obliged to report that it is a really good book so far. One of the better surveys of the problems with the A of C that I've read.

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Carl Eric Scott
on June 22, 2018 at 13:35:13 pm

Pukka / EK:

Here is a link to a Texas Law Review article by Mark Pulliam ( a tad bit long but a quick read) in which he tackles "judicial engagement" - something which exposes how libertarians are as guilty as Progressives of undermining classical liberal principles - not advancing or even understanding them. I think that this is also something that Deneen FAILS to account for in his critique of classical liberalism and the American regime.

https://drive.google.com/file/d/1bcO6eAWIUe6A5CHR7m2b-mxp2eaiionR/view

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gabe
on June 22, 2018 at 15:27:23 pm

I would agree that Law professor Klarman's is "a really good book" but it neither supports nor contests historian Uzzell's arguments (as I would describe them) 1) that legal scholars who would monopolize the originalism debate to the exclusion of historians do so at the risk of displaying their vanity by losing their argument and 2) that the study by historians of the Founders' and the Founding's history so as to debunk (rather than ignore or tolerate) dubious assertions about the Founders and the Founding (which Uzzell alleges law professor Bilder has written about Madison revising his Notes) is of existential importance to the legal theory and ground of constitutional originalism.

Klarman largely ignores and does not rely on Bilder's argument that Madison was a post hoc self-revisionist, so citing Klarman seems irrelevant to Uzzell's argument with McGinnis and Rappaport (unless the commenter, by implication, seeks to support the notion that in the originalism debates among the law prof's historians are otiose.)

I would note, too, the irony that the foundational works on the Founding cited in the originalism debates among the law prof's were written by historians, Gordon Wood and Pauline Maier.

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Pukka Luftmensch
on June 22, 2018 at 17:18:11 pm

Klarman’s repetition and exaggeration of Bilder’s claims are contained entirely within a page-long footnote (pp. 135-36), which suggests that it might have been a hasty addition inserted late in the game. To be clear: I have no quarrel to make against Klarman’s book other than that ill-conceived footnote, which contains numerous factual errors.

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Lynn Uzzell
on June 22, 2018 at 19:38:16 pm

Thanks for pointing out the footnote which, when first read, did not impress me b/c I was not focusing on and had no reason to doubt Bilder's assertions re Madison's rewrite and b/c, in any event, I was already held the opinion that the Madison Jekyll of the Convention (a Federalist for most ratification purposes) became Jefferson's Hyde post-ratification, whether or not Madison later altered his Notes. Now that I know that the allegation of the rewrite is seriously disputed and that the mere allegation can be used not only to discredit Madison as an original source but also to discredit originalism, I agree that it is imperative to set the record straight if the facts warrant ("rehabilitate the witness" as we trial lawyers would say.)

As for the thesis of Klarman's book, the Bilder thesis really is immaterial, it seems to me.

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Pukka Luftmensch

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.