In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate. In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary. Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings. But he still believes originalists are likely to be upset: Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask…
Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize. While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article. I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.
The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is. If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem. By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.
Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach. Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution). An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.