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05/07/2017

Gerard Magliocca: Revisiting Madison's Notes on the Constitutional Convention
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted A Faction of One: Revisiting Madison's Notes on the Constitutional Convention (Law and Social Inquiry, forthcoming) on SSRN.  Here is the abstract:

This Essay on Madison’s Hand: Revising the Constitutional Convention, Mary Bilder’s revisionist account (2016) of James Madison’s Notes on the Constitutional Convention [ed.: book description here] argues that her central thesis, which is that Madison substantially revised the Notes long after the Convention adjourned, is groundbreaking but will have no effect on constitutional law. Madison’s Hand is groundbreaking because the book yields many powerful insights into the deliberations of the Convention and into the evolution of Madison’s thought. Nevertheless, constitutional practice in the Supreme Court and among elite lawyers is so divorced from the Notes that even a dramatic shift in their interpretation will not disturb the evolution of judicial doctrine applying the text written in 1787.

Notably, as I discuss here, Justice Scalia did not rely very much on Madison's notes (although he did occasionally).