Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
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.
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.”
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. 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.” 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?
 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.
 Christopher Collier and James Lincoln Collier, Decision in Philadelphia : The Constitutional Convention of 1787 (Random House : Reader’s Digest, 1986), p. 70.
 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.
 Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (Harvard University Press, 2015), p. 132.