an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I just attended a terrific mini-symposium on Mary Bilder’s new book, Madison’s Hand: Revising the Constitutional Convention, sponsored by the Clough Center at Boston College (video here). Any symposium with David Strauss and Sai Prakash is a good one in my book, and Professor Bilder’s book is as lucid and engaging as she is. The book meticulously documents the extraordinary large number and striking number of important changes Madison made to his notes on the Constitutional Convention over the course of his life.
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.
On the panel, we were divided as to what to make of Bilder’s important book.
Professor Prakash was quite critical of Madison, whereas Professor Strauss and I were more forgiving. No matter what your view, however, the book is excellent and well worth a read.
by Heather K. Gerken [link]