There have been a couple of blog posts on Professor Mary Bilder’s op ed (link no longer available) on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis. I don’t mean to pile on, but there are some important questions that remain to be addressed. Mary Bilder is an important law professor who is also a legal historian. Her op ed reflects the views of many historians about originalism and therefore I believe it warrants some attention. I should say that I have enjoyed Bilder’s work in the past. Her article on the Corporate Origins of Judicial…
Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize. While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article. I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.
The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is. If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem. By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.
Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach. Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution). An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.