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Madison’s Notes: At Last, a New and Improved Look

The Library of Congress last week released new digital scans of James Madison’s Notes of the Constitutional Convention, and they are exquisite. Researchers now have an invaluable resource for discovering the true worth of Madison’s Notes, which he revised throughout his life, and which were not published until 1840, four years after his death. Famously, he wanted them to be made public only after those who framed the Constitution had died. Sensing that his semi-official record of the deliberations in Philadelphia in 1787 would be a political football, he hoped that the passage of time might diminish this effect.

Of course, even so, the Notes were controversial as soon as they entered the public realm. Alexander Hamilton’s son tried to discredit them, starting in 1840. He has had many successors, but Madison’s Hand, the 2015 book by Boston College law professor Mary Sarah Bilder, has been the most systematic and the most successful attempt thus far to cast suspicion on the Notes. According to Bilder’s book, the Notes Madison kept during the proceedings were not originally intended as an objective record but were a subjective diary. Bilder also alleged that he frequently omitted material that he wished to keep hidden—sometimes replacing whole sheets merely to redact material—and that he invented speeches that had never been spoken. Supposedly it was all done (as Gordon Lloyd outlined in his review of this book for Law and Liberty) in service of the Madisonian and Jeffersonian struggle against the Federalists during the 1790s.

Why Should Originalists Care?

Granted, one might not expect originalists of a certain stripe to get too exercised about Madison’s Notes and whether or not they are an authoritative guide to the writing of the Constitution. The late Justice Antonin Scalia famously avoided any reference to the Convention debates when drafting his opinions. In response to this kind of reticence, Vasan Kesavan and Michael Stokes Paulsen tried to persuade even “public meaning” originalists that the records of the Convention were a legitimate source for interpreting the Constitution. University of San Diego law professor Mike Rappaport’s take on the Bilder book, also in Law and Liberty, was that it is “not a big deal” if Madison did not accurately transcribe the Notes he wrote during the deliberations, since their accuracy  is irrelevant to Rappaport’s work as a public meaning originalist.

According to Bilder herself, Lawrence B. Solum, and another originalist whose name she doesn’t mention, told her that her debunking treatment of the Notes actually helps originalism—presumably in driving people away from background material to a concentration on the Constitution’s text. If this is true, it could be that we have found the one question on which originalists and anti-originalists share a common cause: the desirability of throwing Madison’s Notes under the bus.

As far as I’m concerned, originalists may argue amongst themselves about the usefulness or propriety of this or that source. The purpose of the present essay is to address all originalists—including those who continue to believe that it is unnecessary, or who even fear it might be “cheating” (in the words of Kesavan and Paulsen), to use the “secret drafting history” to interpret the Constitution.

To originalists of every variety I would say: there are several reasons you should care about the repeated attempts to discredit Madison’s Notes.

One is that the natural foe of originalism, however construed, is judicial fiat, and its historiographic counterpart can be found in these efforts to deny the reliability of the Notes. The proper role of historians, like the proper role of judges, is to exercise judgment, not will. The many attempts to debunk the Notes have relied not on Madison’s actual writings but on creative conjectures, speculations, and innuendo. They have been rife with factual errors, distortions, and serious omissions of fact.

This was true of the anti-Madison diatribes of William Winslow Crosskey, a New Dealer who taught at the University of Chicago law school, which were founded on no factual evidence whatsoever. It is no less true of the more recent and far more sophisticated case presented in Madison’s Hand. Unlike Crosskey’s, the latest critique rests on a foundation that, to the untrained eye, appears to offer some proof. But the evidence that has supposedly been amassed to prove Madison’s duplicity collapses under careful scrutiny.[1]

Another reason to care about this controversy is that the U.S. Constitution is more than a fundamental law; it reflects who We, the People, actually are. Madison’s Notes are therefore one of the most significant sources for discovering America’s origin story. Debunking these records without legitimate cause is serious business, for if the skeptics’ narratives were widely accepted as true, historical accounts about Madison’s Notes would not be the only histories to suffer. All future histories of the Constitution’s formation would henceforth rest more on speculation, with less reliance on fact.

Old Beard in New Guise

Third, the debunkers are engaged in an effort that is simply an extension of the old Beardian thesis. Charles Beard sought to show that the Constitution was founded entirely on self-interest and that any show of higher principles was mere window dressing. Madison’s Hand suggests that even the records of the Constitution’s formation were driven by nothing more than partisanship and self-interest. Originalism is based at least in part on the assumption that the political accomplishments of America’s Founding were admirable and worthy of preserving.  Undermining the credibility of the Notes undermines the credibility of Madison, the “Father of the Constitution.” It further erodes an already disintegrating respect for the Founding generation, which likewise erodes respect for the Founding documents.

Fourth, the American people do not happen to be public meaning originalists. Polls consistently show that roughly half of Americans regard themselves primarily as originalists, and one revealing new survey found that fully 90 percent of Americans believe that the Constitution’s original meaning should play at least some role in the Supreme Court’s decisions. But even more revealing is the fact that, of that number, two-thirds chose the “Framers’ intent” (as opposed to the understanding of those who ratified or the average voter at that time) as the most important consideration when determining the Constitution’s original meaning.

Relying on the “Framers’ intent” is the practical equivalent of relying on Madison’s Notes.

The methodology of public meaning originalists is quite rarified, and it is unlikely to ever animate the natural fealties of the average person. To paraphrase Madison’s lesson from Federalist 49: “even the most rational method of constitutional interpretation will not find it a superfluous advantage to have the prejudices of the community on its side.” One has to give due respect to the rhetorical instincts of the anti-originalists. By launching unmerited attacks on the moral integrity of James Madison and the historical integrity of his Notes, they know what they are about. They have a non-negligible chance of influencing the views of the average American away from any attachments to the Founders or any trust in their words, and that is not good news for originalists of any stripe.

Fifth: Originalists who remain indifferent on this question tend to confirm that the anti-originalists have a point when they claim their adversaries approach history in a strictly utilitarian or self-serving way. Justice William Brennan once remarked  that originalism was “a view that feigns self-effacing deference” to the Framers, but “in truth it is little more than arrogance cloaked as humility.” More recently, Jack Rakove aimed a similar barb at public meaning originalists in particular. In a review of Madison’s Hand, Rakove said  the book’s revelations “will likely fortify the anti-historicist bias of originalism as it is currently practiced.” The common thread in these accusations is that the originalists’ professed emphasis on historical documents is mere posturing and opportunism; they are only interested in the Founding to cloak their partisan goals in the mantle of borrowed eminence. Continued indifference to a genuinely important historical question (or even covert zeal to accept the unmerited debunking of the Notes) helps justify such accusations.

175 Years of Baseless Caviling

As I said, the trail of skeptics and critics has been long. Charles C. Nott first proposed in 1908 the strange notion that Charles Pinckney (1757-1824) was the most important Framer of the Constitution. Nott subtly implied that Pinckney’s reputation had suffered due to Madison’s attempts to undermine it. By the mid-20th century, Sydney Ulmer took up this cause more directly, announcing that it was Pinckney who deserved the title, “Father of the Constitution,” and that Madison denied him this title out of envy.

Some historians have been searching Madison’s Notes ever since Ulmer, looking for evidence to support this notion. Christopher Collier and James Lincoln Collier, for example, claimed that it was a mixture of Madison’s “jealousy and contempt” that led him to suppress Pinckney’s various contributions during those four months in Philadelphia. The Colliers averred that Madison “did not take down any of Pinckney’s [June 25] speech at all. Instead, he got it from him at some point later on.” Yet, from looking at the manuscript evidence for that day, we find that Madison had originally written down his own version of the speech before being supplied with the “authorized version” given to him by Pinckney. A fragment of the original speech can still be found, partially crossed out, at the bottom of page 77-b of the manuscript.

The Colliers also said Madison intentionally omitted the final paragraph of that same speech, because a concluding paragraph can be found in the Convention notes of Anti-Federalist Robert Yates of New York that is not found in Madison’s Notes. Madison had claimed that the speech given to him by Pinckney had stopped at this point; but the Colliers flatly declare that this “statement is hard to believe,” since Pinckney “would hardly have given Madison a truncated version of his speech.”[2]

The Colliers’ charge  is now easy to disprove, since Pinckney’s June 25 speech, in his own handwriting, is still among Madison’s papers. And if we simply compare the end of his version to the final page of Madison’s transcription, we find that Madison was correct. Pinckney evidently did not want his final paragraph to be recorded for posterity, and Madison had complied with Pinckney’s wishes. But no doubt impelled by motives of honesty, years later Madison wrote at the bottom of his transcription that the “residue” of the speech had not been “furnished, like the above, by Mr. Pinckney” (thereby confirming that Yates’s version of the speech’s conclusion was indeed an accurate reflection of the oral delivery).

Richard Beeman added his own accusations to the suppressing-Pinckney narrative. Beeman claimed that Madison had “once again omitted most of the details of Pinckney’s [May 30] speech.” We can know that the speech contained more, according to Beeman, because Yates had attributed additional details to that speech within his own notes of that day’s debates. Yet, if we compare all of the records, we find that Madison was in the right. Madison had attributed similar sentiments, recorded the same day, to Charles Pinckney’s older cousin, General Charles Cotesworth Pinckney (1746-1825).  Madison’s version of events is confirmed by looking at a third source, the notes of Maryland’s James McHenry. McHenry likewise attributes that speech to General Pinckney.[3] Therefore, it was not Madison who was suppressing Charles Pinckney’s contributions but Yates who misattributed to the younger Pinckney a speech that rightfully belonged to his elder cousin.

Mary Sarah Bilder also joins the suppressing-Pinckney bandwagon. Madison’s Hand claims that Pinckney was a “competitor” of Madison’s. The latter “continued to diminish Pinckney’s contributions” by failing to list a series of proposals that the South Carolinian made on August 18 in the Convention. According to Bilder, Madison “dismissively” acknowledged that Pinckney had proposed additional powers; however, he “did not enumerate them.”[4] Nevertheless, if we examine the original manuscript for that day, we find that, immediately following Madison’s note that Pinckney had proposed “additional powers,” he added these words: “See Journal of Convention.” Madison was referring to the official Journal kept by the Convention’s secretary, William Jackson, in which was recorded only the procedural content of that summer, not the debates.  Later, when Madison had access to the official Journal, he crossed out his first notation and filled in the missing details on a separate slip of paper.

In other words, it is evident from examining the physical manuscript (and here, the new images are essential for getting the full story) that Madison’s notation to refer to the Journal was written contemporaneously with the rest of his Notes. Clearly, there was no “dismissive” attempt to suppress Pinckney’s contributions; there was merely a preconceived plan to add the details later.

That clue also forms part of the evidence disproving the notion that Madison copied matter from Secretary Jackson’s Journal into his Notes to disguise his initial negligence. The evidence is clear that Madison was planning all along to follow the same practice that he had adopted when recording the proceedings of the Confederation Congress in 1782-83 and 1787 —to use the official Journal records to supplement his own Notes wherever he left gaps in the procedural details.

Accountability Has Arrived

For too long, Madison’s detractors have faced little accountability. Until now there was no easy way to check their claims. Researchers have found it exceedingly difficult to gain access to the papers labeled a “Top Treasure” by the Library of Congress, and prior reproductions of these pages have been of poor-to-middling quality. When I wrote to my congressman, Virginia Republican Bob Goodlatte, to describe this sad state of affairs, his office responded to my suggestion that a new set of high-resolution scans was long overdue. They persuaded the Library of Congress to prioritize the Notes within its existing digitization project, and the result is last week’s release of these high-resolution, color images.

With these sharper images, scholars can confidently assert that Madison’s Notes are far more trustworthy and unbiased than the spate of scholarship that has repeatedly sought to discredit them. However, given the bias against the Notes shown by various historians, and the indifference shown by various originalists, the question remains: Will there be sufficient numbers of scholars, writers, and historians who care about uncovering the truth?

 

[1] See Lynn Uzzell, “A New Investigation into Madison’s Notes of the Convention: Solving the Mystery of His June 6 Speech,” American Political Thought 6:4 (Fall 2017). The historiographical defects listed in that article are only the tip of a longstanding iceberg. In a forthcoming book, I will detail 142 fallacies that have been published about the Notes since 1840.

[2] Christopher Collier and James Lincoln Collier, Decision in Philadelphia : The Constitutional Convention of 1787 (Random House : Reader’s Digest, 1986), p. 70.

[3] Richard R. Beeman, Plain, Honest Men: The Making of the American Constitution (Random House, 2009), pp. 100–101. Beeman’s error can be seen by examining Farrand’s records and editorial notes: see especially The Records of the Federal Convention of 1787, edited by Max Farrand, Revised Edition, Volume 1 (Yale University Press, 1937), p. 39, note 22.

[4] Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (Harvard University Press, 2015), p. 132.

Reader Discussion

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.

on March 08, 2018 at 11:35:11 am

That is a refreshing, learned commentary for which I am most grateful. Thank you, Lynn Uzzell.

Your commentary is a but small tribute to reason, tradition and prudence, but there are those who will love her, those like me for whom historical scholarship seems increasingly a crypto-political foray on behalf of the Progressive Commie Academy, an insidious ideological tactic aimed at undermining America's palpable love of its heritage and destabilizing our republic by democratizing the constitution, selectively abusing the Founders, defaming our history, attacking its conservative scholarship and culturally isolating its conservative scholars, rationalizing unconstitutional jurisprudence and destructive political outcomes so long as they are in pursuit of soi-disant morally worthy ends, denying or putting a happy face on the hideous consequences of liberal jurisprudence and legislation, and writing hagiographies of the principal perpetrators of the Left’s political and legal disasters.

More than enough is too much!

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timothy
on March 08, 2018 at 11:47:54 am

The importance of "shining the light" on truth cannot be underestimated.

I read this essay with great interest. I am grateful to the author for her persistence (and that of Rep. Goodlatte's office), which resulted in the effort to complete the digitization process for this "Top Treasure" - a daunting task to be sure.

Kudos to the author; I hope someday to see a book published presenting this viewpoint to stand next to the cited works now available. I would appreciate the opportunity to make my own judgements on Madison's perspectives in the light of the now-visible "day."

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Christine S. Holet
on March 08, 2018 at 12:31:34 pm

Excellent commentary with convincing arguments. The politicization of history and its subsequent distortion is a dangerous trend. Thank you to Lynn Uzzell for pushing back against this tide.

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Wayne
on March 08, 2018 at 15:40:14 pm

Thank you, Lynn Uzzell! Keep the bright light of truth shining. Good scholarship must not be allowed to be pushed aside.

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Susan
on March 08, 2018 at 18:56:31 pm

I appreciate Professor Uzzell’s contributions to history studies.

But I am twice troubled by “the U.S. Constitution is more than a fundamental law; it reflects who We, the People, actually are.”

The subject of the 1787, draft preamble is We the People of the United States rather than We, the People. But the people of Rhode Island had not collaborated in creating the individual civic agreement that is stated in the preamble, and only nine states ratified with the intention to add a bill of rights---leaving a total of four dissident states on June 21, 1788. Virginia joined the USA a month later, and USA operations began with ten states on March 4, 1789. By the time the bill of rights was negotiated, a fourteenth state had joined. Thus, the constitution for the USA was not complete before ratification on December 15, 1791. The best history can say is that the inhabitants of the United States “actually are,” and always were, divided.

The constitution is both controversial and amendable. At no time does it reflect who We the People of the United States actually are. In 1787, We the People of the United States had experienced some 180 years of freedom-from European oppression and some discovered the liberty-to pursue the happiness they individually perceived rather than the dictates of a patriot, like James Madison (federalist) or Patrick Henry (statesman). Henry opposed ratification and urged changing “We the People” to “We the States.”

The 1787 Constitution intended ending slave trade, effecting abolition of slavery if economic feasibility became evident, and separating from British law and religion. However, beginning in 1789, Madison collaborated with the First Congress in reinstating Blackstone but with American, factional Protestantism rather than the Church of England. We the People of the United States paid no attention to Congress’s tyranny, perhaps because among citizens, about 80% of inhabitants, 99% were factional Protestants. We the People of the United States has suffered freedom of religion, in particular freedom of Christianity ever since. Our generation may end that misery and loss.

The people of 1787 in no way wanted democracy to replace monarchy and the signers promised in the constitution a republican form of government. These 231 years later it is common for leaders and writers for the media, such as the Wall Street Journal, to cite “our democracy.” There’s a zeal for social democracy or socialism rather than the rule of statutory law. The constitutional law scholars debate the past while the nation is being lost in the present. (This is another view of Professor Uzzell’s civic concern.) Losing originalism is trivial to losing republicanism as the rule of statutory law. But American republicanism’s standard of justice is the-objective-truth, established by discovery, rather than religion, a matter of opinion.

Madison was such a shrewd politician he wanted no public notoriety for statements like, “During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Yet in the same document, he perhaps collaborated on “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” See founders.archives.gov/documents/Madison/01-08-02-0163, especially the “Editorial Note.”

That was in 1785, and many civic people of 2018 are more impressed with Albert Einstein’s view that physics---as energy, mass and space-time---governs the universe. Even religion derives from speculation about what is imagined but undiscovered in energy, mass and space-time. Madison’s opinions pale before the-objective-truth, which existed and can only be discovered rather than being constructed on reason and emotions.

Each human being may possess and admit-to the authority to develop personal judgement on which to spend the energy of his or her lifetime. It is an individual quest, and humankind may or may not benefit from the choices made. It seems unlikely that verifying the opinions of James Madison can do much for an achievable, better future. But I must admit to many hours trying to understand what is attributed to him and to earn my sparse opinion. The prospect that Madison honestly had not discovered integrity seems to pale before humankind’s discoveries during these 231 years.

In 2018, most students of justice can attest that honesty is insufficient: a civic person may pursue integrity. I hope these thoughts advance an achievable better future.

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Phillip Beaver
on March 13, 2018 at 06:53:11 am

Professor Bilder did not write a book "to cast suspicion on the Notes". She simply pointed out that Madison's "diary" was, in fact, a sustained commentary that should not be read as a trial transcript or even a sworn affidavit.

We have the Constitution's words; what we do not have and will never have is a complete record of how matters were debated and decided. Washington was, by all reports, a man who commanded absolute respect by his physical presence. Our tradition of sniping journalism probably owes its origin to the fact political opponents found it much easier to complain in print through surrigates and surnames than to address the President directly. Yet, we have no evidence at all of how much Washington's demeanor as Chair weighed on the Convention's decisions. What Professor Bilder points out is the obvious: Madison and his hero Jefferson had no reason to want to remember dispassionately how matters were decided in Philadelphia because Washington had been in command there. His idea of a Democratic-Republic was not theirs.

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Stefan Jovanovich

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.