New Draft of Constitution? Well, Not New. And Not a Real Draft.

Last Tuesday the Philadelphia Inquirer reported about the rediscovery of a document in the holdings of the Historical Society of Pennsylvania, said to be a lost “early draft” of the U.S. Constitution by James Wilson (shown at right, courtesy of the University of Pennsylvania Law School). The researcher who made the find, and the claim of its importance, is Lorianne Updike Toler, a lawyer pursuing graduate studies at Oxford.

That article quoted one established constitutional scholar on the significance of the discovery: “John P. Kaminski, director of the Center for the Study of the American Constitution in the history department at the University of Wisconsin-Madison.”

Kaminski is also one of the six directors of ConSource: The Constitutional Source Project, and chair of its Academic Advisory Board. Toler is a co-founder and former executive director of ConSource, which quickly used the news coverage in an appeal for funds.

However, the same Inquirer story also acknowledged: “The document - one of 21 million in the Historical Society's collection - was known to scholars…” On Friday the society showed on its blog how this document was transcribed and published in The Records of the Federal Convention of 1787, a widely used authority edited by Max Farrand, in 1911.

The H.S.P. contacted other historians who’ve worked on this subject, and their comments on that blog entry indicate that they were underwhelmed. Mark David Hall, author of The Political and Legal Philosophy of James Wilson, 1742-1798:

I was disappointed to find that these documents had long been known to scholars. They were published in the same order suggested by Ms. Toler by Max Farrand in 1911. . . . It seems a stretch to call these notes a “draft” of the Constitution, and labeling them as such adds little to our knowledge of Wilson or the Constitutional Convention.

Richard R. Beeman, University of Pennsylvania, author of Plain, Honest Men: The Making of the American Constitution:

Max Farrand, in his 1911 edition of The Records of the Federal Convention of 1787, reprinted all of the documents discovered by Ms. Toler, and in exactly the order in which they appear in the manuscripts she discovered in the HSP archives. It is also the case that the location of those documents is not at all obvious, so Ms. Toler should be given credit for diligent searching and sleuthing. But the lion’s share of the credit truly does belong to Max Farrand, who long ago not only discovered the documents, but also recognized them for what they were—important contributions by Wilson to the Committee of Detail Report.

William B. Ewald, University of Pennsylvania Law School, author of “James Wilson and the Drafting of the Constitution” (PDF download):

The Wilson drafts are extremely well-known. They were first systematically studied at the end of the nineteenth century by Franklin Jameson, whose monograph appeared in 1902. Jameson did much of the work of piecing together the various drafts of the Constitution. His work was supplemented by Max Farrand, whose magisterial Records of the Constitutional Convention, published in 1911, carefully assembled all the known documents. . . . [This document] is to be found, properly catalogued, in the Wilson collection, exactly as Farrand reported a century ago.

Apparently Toler found a page that got separated from the rest of its original stack, bound with other Wilson papers, and finally acquired by the H.S.P. Following common archival procedures, the library staff did not undo that binding and refile the page with the rest. And the pre-computerized catalogue did not specify what each piece of that volume was, meaning that Toler had the thrill of spotting how it fit with other H.S.P. documents.

The Mormon Times picked up on the story from Philadelphia because Toler is a Provo native and graduate of Brigham Young University. It didn’t do her any favors by quoting her as saying:

“This makes James Wilson very much equal to Thomas Jefferson as a drafter of the Constitution,” she said. “It means to truly understand the Constitution, we need to study James Wilson a whole lot more.”

Jefferson was in Paris as the U.S. minister to France during the constitutional convention, and didn’t see a need for a stronger national government. [ADDENDUM: Toler has told American Creation: “I was misquoted on Jefferson. The Deseret News has apologized individually to me, and I have asked them to officially print an errata. The quote should have been ‘I believe this draft may indicate that James Wilson is to the Constitution what Thomas Jefferson is to the Declaration of Independence.’ Understandable error: it’s hard to type as fast as I talk.”]

Toler’s own comment on the H.S.P. blog acknowledges that she is “currently alone in calling these two disparate pieces a ‘draft’” of the Constitution, rather than notes prepared for the Committee of Detail or even written during that committee’s discussions. But it’s not clear even that interpretation is significant. Historians have long credited Wilson with an important role at the Constitutional Convention, and the final document was truly a group effort—that’s why there was a convention, after all.

This episode does underscore the value of computerizing sources to make them widely available, as ConSource was founded to do—though it may be duplicating other, larger efforts. The H.S.P. can file the original paper document in only one place. However, digital copies of the pages, transcripts, and catalogue entries can be duplicated and linked in many ways, helping to ensure that scholars never lose the trail to all of Wilson’s surviving notes.