Thursday, November 12, 2015

Madison's Journal and the Appeals of Originalism

Richard Primus

Yesterday on this blog Heather Gerken posted thoughts about Madison’s notes from the Constitutional Convention, inspired by a seminar on Mary Bilder’s fine new book Madison’s Hand: Revising the Constitutional Convention.  I’d like to amplify, with specific attention to the puzzle of why Bilder’s point might bother some originalists.

Bilder’s book shows ways in which Madison’s journal is not a fully reliable guide to what happened at the Convention.  He had agendas in mind when thinking about how to present the Convention to posterity, and he revised his notes after the fact, and so forth.  Gerken notes that facts like these might raise challenges for originalists, even though the dominant schools of originalism today officially seek the public meaning of the document rather than the subjective intentions of the Framers and should therefore be more interested in the ratification debates than in anything that happened inside the Convention. 

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?

It may be worth deepening the mystery by pointing out that the unreliability of the journal shouldn’t be anything that a constitutional lawyer is only now discovering.  Without in any way taking away from Bilder’s contribution, we should note that the basic point that Madison’s journal is not a fully reliable narration of the convention is one that historians have understood for a very long time.  Max Farrand compiled his standard edition of the Convention’s records more than a hundred years ago, and his introductory materials candidly acknowledged that a number of his sources were deliberately altered by their authors—Madison included—after the fact.  (The joy of a book like Bilder’s is the way it digs in to the particulars of the problem.)

Perhaps most of the people who have cited Farrand in the century since have not read his methodological introduction at all, much less taken it to heart.  It is much easier just to crack open the books to a page that seems to record a discussion of a topic in which one is interested, read what is written, take that as what happened, and then cite that page in a brief or a law review article as if one is citing the Congressional Record (which also does not tell us everything we’d like to know about why what happens in Congress happens, but which at least is likely to tell us accurately what someone actually said on the floor of Congress). 

But notice that we as a profession don’t treat citing Madison’s notes as if it were a lazy lawyer’s corner-cutting, in the way that people with a certain kind of sense for rigor used to treat citations of Wikipedia before Judge Posner began making that business as usual.  The practice of treating Madison’s journal (even as presented in Farrand’s edition, with its methodological warning up front) as if it were a stenographic transcript of the Convention has been robust—lawyers and courts and law reviews cite Madison in Farrand as if it were proof that something happened, rather than as circumstantial evidence that the thing described or something like it might have happened. 

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.

To close with an amplification of the last point, consider how the basic threat of Bilder’s book mirrors the basic threat posed by Biblical scholars who show that the Bible is not a single text but a compilation of different texts by different authors taking different perspectives.  There’s a way in which any reader of the Bible should know that already, just like any reader of Farrand should know that nobody’s account of the Convention is fully reliable.  All that should be necessary in the Biblical case is to read the Four Gospels, which do not tell an identical story, or to notice that the first two chapters of Genesis tell the creation story in nonidentical ways, or that the text of the Ten Commandments in Exodus does not match the text of the Ten Commandments in Deuteronomy.  The last example might be particularly poignant for lawyers: you’d think that an authoritative statement of the law would at least get the text of the law right, and the failure to do so hints at the possibility that neither version is trustworthy.  But communities of the faithful often use the Bible in a way that calls for the Bible to be, among other things, an account of what actually happened.  So the awareness that the text we venerate cannot really do that is pushed to the side, either through consensus neglect or with feats of ingenuity designed to explain how multiple texts that apparently give different accounts of a thing are actually consistent.  (According to one rabbinic tradition, God at Sinai spoke the two versions of the Ten Commandments text simultaneously, so both accounts are true.  The point, of course, is that we shouldn’t think the sources unreliable—we should understand the underlying event to be yet more miraculous than we previously thought.)

To the extent that the appeal of either Bible study or originalism is its capacity to make us feel connected to a great revealed truth, we’d like the texts to be faithful representations.  We seem to want to go right on citing Madison, despite what we know or ought to know.  Perhaps because the appeal of the activity is not so different from the appeal of the other devotional-interpretive activity that it in so many ways resembles.

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