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05/20/2018

Lynn Uzzell on Originalism and Madison's Notes (with a Response by John McGinnis)
Michael Ramsey

At Liberty Law Blog, Lynn Uzzell has a two-part post on the reliability and significance of Madison's Notes: A Pox on Both Your Houses, Part I: Anti-Historical Originalists and A Pox on Both Your Houses, Part II: Anti-Originalist Historians.

From the first:

... [T]wo very different camps — originalist legal scholars and anti-originalist historians — unite in promoting some dubious history about Madison’s Notes of the Constitutional Convention. Each side of the debate has contributed to the debunking of Madison’s Notes, apparently in pursuit of its own agenda.

...

Crucial to the credibility and respectability of originalists is a credible respect for history in both of its primary meanings. First, history means the actual events that took place in the past. Of special interest to the originalist would be the persons, arguments, and activities related to the formation, adoption, and early application of the Constitution.  The second meaning is the scholarly discipline of studying the extant evidence of those past events to form a coherent narrative about them.

And both senses of history, at least insofar as the history of the Constitutional Convention is concerned, have been under threat since the 2015 publication of Mary Sarah Bilder’s book, Madison’s Hand: Revising the Constitutional Convention. This book is suffused with imaginative conjectures about how Madison “doctored” his Notes of the Constitutional Convention in order to improve his own image, yet it offers very little in new evidence—at least, very little evidence that will stand up to careful scrutiny.

And further:

That the anti-originalist historians have warmly embraced a narrative that discredits the most important historical records about the Constitution’s formation is easy to understand. But the response by some originalists is more perplexing to the outside observer. Georgetown law professor Lawrence Solum and at least one other originalist have privately confided that they believe that Madison’s Hand “helps us.” More publicly, Professor Solum has enthused: “Every constitutional law scholar needs to read this book. And the judges, lawyers, legal scholars, and historians need to rethink its approach to the Framing. Highly recommended!”  Other originalists have been conspicuously indifferent to the book.

By way of contrast, scholars who are more thoroughly acquainted with the history of Madison’s Notes — such as Gordon LloydW. B. Allen, Paul Rahe, and myself — have given compelling reasons to be highly skeptical of the most provocative claims made in Madison’s Hand.  Professor Solum did not offer his reasons for insisting so strenuously that not only historians, but also judges, lawyers, and legal scholars need to read this book and rethink the Framing. However, it is difficult not to suspect that his brief but fervent endorsement arises from some mixture of ignorance of and disdain for the history of the Constitution’s formation. In other words, not only are the details of this epoch unknown to originalists but, as far as they’re concerned, they’re not worth knowing. Therefore, a book suggesting that the history is less knowable is all to the good.

The growing tendency among originalists to spurn constitutional history is a mistake if they hope to appeal to non-specialists who are not already sold on originalism ...

John McGinnis responds: Originalism Deploys History Under Legal Discipline.  It begins:

Lynn Uzzell has written a broadside against both anti-historical originalists and anti-originalist historians. I am one of the originalists criticized. But more importantly, the picture Uzzell paints of originalism as practiced is unrecognizable to me.

Originalism today is deeply historical in its effort to recover the meaning of the Constitution as it would have been understood by the Framers of the Constitution. Indeed, the brand of originalism which Mike Rappaport and I formulated requires following the methods of interpretation that would have been deemed applicable at the time—a subject that obviously requires research into legal history. But more generally, as Mike Rappaport and I have recently discussed, scholars interpreting particular constitutional provisions today undertake deep dives into the historical usage of its legal terms, like “due process” or “cruel and unusual punishment.” They have also applied legal interpretive rules that and they have supported their use by showing that the Framers themselves used them. It is hard to think of more pro-historical originalism than this.

And from further on:

Thus, while I do not I agree with Larry Solum that Mary Sarah Bilder’s claims, even were they true, about Madison, are likely to advance originalism as a positive enterprise, they not likely to dramatically revise our interpretation of the Constitution’s original meaning. It is largely fixed by other historical evidence more relevant to the way legal meaning was determined at the time. That does not mean that the private intentions of the Framers cannot point to the relevant context of the provision. Larry Solum, who Uzzell also criticizes, says as much here, and originalists do make use of such statements for these limited purposes.

One quick sidenote (which I think supports John McGinnis):  in my investigation of Justice Scalia's methodology I conclude that he made only infrequent use of Madison's notes -- see here, Part II.A (finding only eight opinions "citing the Convention debates in support of a substantial argument" and concluding that "the course of the Convention and the discussions within it do not play as central a role in his opinions as they do in some originalist scholarship").