At Balkinization, two great posts on Mary Sarah Bilder's outstanding book Madison’s Hand: Revising the Constitutional Convention:
Heather Gerkin: James Madison as an Unreliable Narrator (describing this conference on the book).
While the book is understated and even-handed, it is sure to kick up controversy. That’s because it raises an important question: What do we make of the fact that Madison is an unreliable narrator? What do we make of the fact that the notes on which so many have relied were altered in self-interested ways? That Madison papers over controversy and shows what Professor Bilder calls a “discomfiting willingness” to conceal his responsibility for mistakes? That his story apparently changed not only due to his own effort to paint his place in history, but due to Jefferson’s pernicious influence?
I suspect that many will be shocked by Madison’s conduct, and these revelations certainly ought to spawn a spirited methodological discussion among originalists. Those who dislike originalism will also be tempted to pounce. The “read the mind of the Framers” variant of originalism is now passé, but still. If the views of one person are this hard to untangle, how do we gauge the views of a nation? Moreover, the book makes clear there is a gap between original public meaning and the true intent of the Framers, as things were passed for reasons that we might not guess from the text.
And Richard Primus pounces: Madison's Journal and the Appeals of Originalism.
I suspect that Gerken is correct that something in Bilder’s point will bother many originalists, even public-meaning originalists. Not all originalists—I’m confident that some public-meaning originalists who are thoughtful and self-aware about their originalism won’t be rattled, precisely because they understand that on an original-public-meaning view there’s no reason to care whether Madison was an unreliable narrator of the Convention. But I do think that many originalists would in fact by rattled by Bilder’s book and by the more general point it represents. So it’s worth thinking a bit about just what the problem might be. Why would originalists care that the journal is in many respects unreliable?
…
Here’s a hypothesis offered as a partial explanation—only partial, to be sure. It’s that internalizing what we ought to know about the limits of Madison’s journal would mean admitting something deeply inconvenient about originalism—not about any particular theory of originalism, but about many of the reasons why originalism is appealing in the first place. And by treating Madison's journal as if it were a stable narrative, we act in accordance with those same things that make originalism appealing.
Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity. The idea that Madison’s journal is unreliable can threaten all four. It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority. It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman. It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be. And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.
I think Professor Bilder's book is an enormous contribution, and so, I expect do most originalists (see here from Larry Solum). I think it is not common to regard Madison's notes as canonical, particularly as to some abstract principles from which specific guidance can be deduced. Indeed, I'm tempted to say that people who think otherwise have a cartoonish view of originalism.
Posted at 6:15 AM