The Imprint of Madison’s Hand

A couple of years ago, I attended a seminar at the Massachusetts Historical Society on a paper by Prof. Mary Sarah Bilder of Boston College Law School. She had been studying James Madison’s record of the U.S. Constitutional Convention of 1787.

That in itself wasn’t unusual; Madison’s notes, first published in 1840, have become the standard source on what happened in those discussions. For folks who take an “originalist” stance to legal interpretations, they’re crucial to what the Founders supposedly meant.

Bilder had focused not on Madison’s record but on how that record had changed since 1787, as revealed by surviving notes and versions copied out by other people in the meantime. The result is the new book Madison’s Hand: Revising the Constitutional Convention.

In this History News Network article, Bilder laid out the basis of her book:

To a remarkable degree, Madison’s revised Notes created the narrative we inherit of the Convention. Hundreds of books and articles have been written about the Convention. They rely on one manuscript: Madison’s Notes. In 1840, after Madison’s death, Dolley Madison published his Notes. They remain the authority for scholars, historians, journalists, lawyers, and judges.

Madison’s Notes are the only source that covers every day of the Convention from May 14 to September 17, 1787. No other source depicts the Convention as Madison’s Notes do: as a political drama, with compelling characters, lengthy discourses on political theories, crushing disappointments, and seemingly miraculous successes. The Notes are, as the Library of Congress catalogs them, properly considered a “Top Treasure” of the American people.

But the Notes do not date in their entirety to the summer of 1787. They are covered in revisions. This fact is known–but the number is a shock. When I saw the manuscript in the conservation lab at the Library of Congress—in the aptly named Madison Building—the additions appear in various ink shades, with handwriting, some youthful, some with the shake of Madison’s later years. Madison even added slips of paper with longer revisions. . . .

Madison’s Notes were revised as he changed his understanding about the Convention, the Constitution, and his own role. Madison’s Notes were originally taken as a legislative diary for himself and likely Thomas Jefferson. They tracked his political ideas, his strategies, and the positions of allies and opponents. The original Notes reflected what Madison cared about.

I love talking about the Notes with students because they know that one cannot take notes of oneself speaking. When they are called on, they either leave their notes blank or they compose that section later, reflecting what they realized afterwards was the right answer. Madison’s own speeches are thus the most troubling in terms of reliability. In fact, in the years immediately after the Convention, he likely replaced several of the sheets containing his speeches in order to distance himself from statements that became controversial. . . .

Beginning in 1789, Madison began to revise the Notes to convert his diary into a record of debates. Along the way, he converted himself into a different Madison. In the original Notes, Madison was annoyed and frustrated. Slowly by altering a word here, a phrase there, he became a moderate, dispassionate observer and intellectual founder of the Constitution.

One particular area of evolution was Madison’s idea of how much control the federal government had over the states. He went into the convention with the idea that the national government should have a veto over state laws, but that idea was unpopular enough that his notes preserve no record of such a suggestion. Of course, Madison continued to change his thinking about the balance of power between state and nation from the late 1780s to the mid-1810s, depending on his circumstances.

Another issue, inextricably related to that one, was how the Constitution treated slavery. Bilder addressed that in a recent essay at We’re History:

Madison’s role in promoting slavery is often overlooked because historians have relied on Madison’s revised version of his record of the Constitutional Convention of 1787, known to historians as Madison’s Notes. They are the most important source for what happened at the Constitutional Convention. In two comments Madison recorded in his Notes, he spoke against slavery at the Convention. They are the only two times in the Notes he claims to have spoken against slavery. Both occasions occur on August 25. No other delegates’ notes from the Convention contain a single word indicating that Madison was opposed to slavery.

New evidence suggests that Madison composed his anti-slavery comments two years after it appeared he had written them. Madison did not finish the Notes until after the Convention, and he wrote the Notes from August 22 to September 17 after the fall of 1789. Curiously, one of the sentences Madison attributes to himself bears a strange resemblance to a statement that he had originally recorded another delegate, Maryland’s Luther Martin, making on August 21.

Madison was the delegate who suggested enumerating enslaved people not as property but as three-fifths of people, the basis of what became known as the “slave power” in ante-bellum America.