Madison’s Hand

Revising the Constitutional Convention

Mary Sarah Bilder

• Publisher: Harvard University Press
• Year: 2015
• Print ISBN: 9780674979741, 9780674055278
• eBook ISBN: 9780674495500
• Topic: Histoire
• Subtopic: Histoire des débuts de l'Amérique

Winner of the Bancroft Prize
Winner of the James Bradford Best Biography Prize, Society for Historians of the Early American Republic
Finalist, Literary Award for Nonfiction, Library of Virginia
Finalist, George Washington Prize

James Madison's Notes on the 1787 Constitutional Convention have acquired nearly unquestioned authority as the description of the U.S. Constitution's creation. No document provides a more complete record of the deliberations in Philadelphia or depicts the Convention's charismatic figures, crushing disappointments, and miraculous triumphs with such narrative force. But how reliable is this account?

"[A] superb study of the Constitutional Convention as selectively reflected in Madison's voluminous notes on it…Scholars have been aware that Madison made revisions in the Notes but have not intensively explored them. Bilder has looked closely indeed at the Notes and at his revisions, and the result is this lucid, subtle book. It will be impossible to view Madison's role at the convention and read his Notes in the same uncomplicated way again…An accessible and brilliant rethinking of a crucial moment in American history."
—Robert K. Landers, Wall Street Journal

NOTES

Introduction

1. James Madison, Notes, JMP (DLC); PJM (Gilpin). For label, see digital images of Notes from Library of Congress provided to author with images labeled James Madison, Debate Notes, 1787, GR no. 142 (May 2003). On Treasures, see “American Treasures of the Library of Congress: Top Treasures Gallery,” DLC, www.loc.gov/exhibits/treasures/tr00.html#caselist. I am indebted to Jack Rakove who suggested that this book was a “biography” of the Notes.

2. Notes survive in original or revised form by Robert Yates, John Lansing, Rufus King, William Pierce, Alexander Hamilton, James Wilson, James McHenry, George Mason, Pierce Butler, Gunning Bedford, and William Paterson. For discussion of other note takers, see RFC, 1:xiv–xxii; SRFC, xviii. On official record, see Mary Sarah Bilder, “How Bad Were the Official Records of the Federal Convention?” George Washington Law Review 80, no.6 (2012): 1620–1682. For modern editions, see [James Madison], The Debates in The Federal Convention of 1787 which Framed the Constitution of the United States of America, eds. Gaillard Hunt and James Brown Scott (New York: Oxford University Press, 1920); Edward J. Larson and Michael P. Winship, The Constitutional Convention: A Narrative History from the Notes of James Madison (New York: Random House, Modern Library, 2005).

3. Outranks in, The Writings of James Madison, ed. Gaillard Hunt (New York: G. P. Putnam’s Sons, 1902), 3:ix. at once, Max Farrand, “The Records of the Federal Convention,” American Historical Review 13 (1907): 44–65, quotation at 51–52; John P. Kaminski, “Madison’s Gift,” Common Place, 2, no. 4 (July 2002), http://common-place.org. For reprints, see James Madison, The Debates in the Federal Convention of 1787 (Amherst, NY: Prometheus Books, 2007); Larson and Winship, Constitutional Convention.

4. Them transcribed, see Dolley P. Madison to the President (A. Jackson), 15 November 1836, in PJM (Gilpin), 1:xvi. For facsimile, see “Fac-simile of the last page of Mr. Madison’s Manuscript Debates of the Convention” in “Fac-similes of the Manuscripts of Mr. Madison carefully copied from the originals … ,” PJM (Gilpin), 3:[backmatter after ccxlvi]; Eric Slauter, The State as a Work of Art: The Cultural Origins of the Constitution (Chicago: University of Chicago Press, 2009), 1–8. For publications, see DHC, 3; RFC. the Debates, Charles R. Keller and George W. Pierson, “A New Madison Manuscript Relating to the Federal Convention of 1787,” American Historical Review 36 (October 1930): 17–30.

5. There has, SRFC, xx; see also James H. Hutson, “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 1–39; James H. Hutson, “Riddles of the Federal Constitutional Convention,” William and Mary Quarterly 44 (1987): 411–423. On Hamilton charge, see John C. Hamilton, The Life of Alexander Hamilton, 2nd ed. (New York, D. Appleton & Co., 1841), 2:490–492 n.† & n. 492 n.*; John C. Hamilton, History of the Republic of the United States as traced in the writings of Alexander Hamilton (New York: D. Appleton, 1859), 3:301–302, 340, 344–348. For Crosskey claims, see William W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953), 1:313 (addressing August 21 Notes), 2:1021 (addressing August 15 Notes); William W. Crosskey, “The Ex-Post-Facto Clause and the Contracts Clauses in the Federal Convention: A Note on the Editorial Ingenuity of James Madison,” University of Chicago Law Review 35 (1968) (posthumously published from repeatedly revised draft): 248–254 (addressing August 28 Notes). On claim rejection, see Irving Brant, James Madison: Commander in Chief, 1812–1836 (New York: Bobbs-Merrill Company, 1961), 435, 571 n. 18; SRFC, xxi–xxiii; Hutson, “Riddles,” 411–423.

6. Inspired by, Larson and Winship, Constitutional Convention, 10. impresses, Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge: Harvard University Press, 1974), ix.

7. Great collaboration, Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Knopf, 1950). Andrew Burstein and Nancy Isenberg give more attention to the 1780s in their chapter, “Partners Apart,” in Madison and Jefferson (New York: Random House, 2010).

8. They are far, Hutson, “The Creation of the Constitution: The Integrity,” 1, 35. no more, Frederic Irland, “The Reporter Who Became President,” McClure’s Magazine 24 (1905): 258–265; see also Hutson, “The Creation of the Constitution: The Integrity,” 1, 33–34 (estimating 7–10% of proceedings at best). Madison could not, Hutson, “The Creation of the Constitution: The Integrity,” 35. Madison’s diligence, Richard Beeman, Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009), 85.

9. Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, NY: Cornell University Press, 1995), 8.

10. For an overview of the scholarship, see Alan Gibson, “Inventing the Extended Republic: The Debate over the Role of Madison’s Theory in the Creation of the Constitution,” in James Madison: Philosopher, Founder, and Statesman, eds. John R. Vile, William D. Pederson, and Frank J. Williams (Athens: Ohio University Press, 2008), 63–87. Excellent discussions of the conventional reading of the Vices and Federalist 10 are Larry D. Kramer, “Madison’s Audience,” Harvard Law Review, 112 (1999), 611–679, and Jack Rakove’s writing, in particular, James Madison and the Creation of the American Republic (Glenview, IL: HarperCollins, 1990); Rakove, “James Madison and the Extended Republic: Theory and Practice in American Politics,” in This Constitution: A Bicentennial Chronicle (Fall 1985), published by Project ’87 of the American Political Science Association and American Historical Association. Over the past decade, political scientists such as Colleen Sheehan, Alan Gibson, Robert Martin, Jenna Bednar, and many others have written abundantly on the extensive republic and federalism. Recent historians and legal scholars who have focused on the relationship to the Constitution include Charles Hobson, Larry Kramer, Jack Rakove, Garry Wills, Gordon Wood, and Stuart Leibiger.

11. The relationship between “population and constitution-making” was emphasized in a note to the apportionment numbers in the first volume of The Documentary History of the Ratification of the Constitution, edited by Merrill Jensen in 1976 with associate editors John Kaminski and Gaspare Saladino. DHRC, 1:297–301. Recent scholarship emphasizing the relationship between slavery and political power includes works by David Waldstreicher, George William Van Cleve, John Kaminski, Paul Finkelman, Robin Einhorn, Matthew Mason, Don Fehrenbacher, Mark Graber, Gary Nash, and authors represented in Contesting Slavery: The Politics of Bondage and Freedom in the New American Nation (Charlottesville: University of Virginia Press, 2011).

12. For scholarship on the documentary record, see John Franklin Jameson, “Studies in the History of the Federal Convention of 1787,” Annual Report of the American Historical Association (1902), 1:87–167 and works by Paul L. Ford, Worthington Ford, Gaillard Hunt, Max Farrand, William Crosskey, Irving Brant, James Hutson, Leonard Rapport, John Kaminski, and the editors of the Madison and Jefferson Papers. A helpful bibliographic aid is Carol D. Billings, “Sources for the Study of the Constitutional Era: A Bibliographic and Historiographical Essay,” Law Library Journal, 81 (1989): 47–67. The paper collections of particular assistance to this book have been those of Madison, Jefferson, Dolley Madison, Alexander Hamilton, and George Washington, as well as the various collections related to the old Congress and the first Federal Congress. Historians and political scientists include Douglass Adair, Joyce Appleby, Bernard Bailyn, Charles Beard, Richard Bernstein, Max Edling, Alan Gibson, David Hendrickson, Charles Hobson, David Konig, Forrest McDonald, Pauline Maier, R. Kent Newmyer, Jack Rakove, Michael Kammen, John Vile, Gordon Wood, and Peter Onuf. Legal scholars and legal historians include, among numerous others, Akhil Amar, Bruce Ackerman, Fabio Arcila, Hans Baade, Jack Balkin, Raoul Berger, Boris Bittker, Steven Calabresi, Thomas Colby, Saul Cornell, William Ewald, Daniel Farber, James Fleming, Barry Friedman, Jamal Greene, John Harrison, Richard Kay, Vasan Kesavan, Leonard Levy, Charles Lofgren, Gregory Maggs, John Manning, Maeva Marcus, William Meigs, Edwin Meese, Bernie Meyler, John Mikail, Robert Natelson, Caleb Nelson, Michael Stokes Paulsen, H. Jefferson Powell, Saikrishna Prakash, Michael Rappaport, Stephen Sachs, Suzanne Sherry, Louis Sirico, Peter Smith, Steven Smith, Lawrence Solum, Jacobus tenBroek, William Michael Treanor, Keith Whittington, and John Wofford. Narrative accounts have been written by Richard Beeman, Carol Berkin, Catherine Drinker Bowen, Frank Donovan, Max Farrand, Clinton Rossiter, David Stewart, as well as helpful compilations on the Convention by John Vile. On Madison and his circle, see Robert Alley, Lance Banning, Irving Brant, James Scott Brown, Edward Burns, Charles Cerami, Lynne Cheney, Francis Cogliano, Donald Dewey, Susan Dunn, Joseph Ellis, Joanne Freeman, Robert Goldwin, John Kaminski, Ralph Ketcham, Adrienne Koch, Richard Labunski, Stuart Leibiger, David Mattern, Richard Matthews, Drew McCoy, Marvin Meyers, Michael Meyerson, William Lee Miller, Gary Padula, Jack Rakove, Neal Riemer, Gary Rosen, Robert Rutland, Colleen Sheehan, Garrett Ward Sheldon, Sheila Simon, J. C. A. Stagg, Garry Wills, and the authors of essays in collected volumes (James Madison and the Future of Limited Government, ed. John Samples (Washington: Cato Institute, 2002); James Madison: The Theory and Practice of Republican Government, ed. Samuel Kernell (Stanford: Stanford University Press, 2003); James Madison: Philosopher, Founder, and Statesman, eds. John R. Vile, William D. Pederson, Frank J. Williams (Athens: Ohio University Press, 2008)). Scholars in the history of the book as it relates to legal texts include M. T. Clanchy, Walter Ong, David Hall, Ann Blair, Anthony Grafton, Robert Darnton, Eric Slauter, Alfred Brophy, Morris Cohen, John Gordan, Michael Hoeflich, Richard Ross, Stephen Wilf, and authors represented in two recent col...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• About Madison’s Notes
• Epigraph
• Introduction
• I. Notes Before the Constitutional Convention
• II. Learning to Keep a Conventional Diary
• III. Recording the Constitutional Convention
• IV. Abandoning the Notes
• V. Completing the Notes
• Conclusion
• Photographs
• The Evidence
• Abbreviations
• Notes
• Acknowledgments
• Index