James Madison was instrumental in the formation of our Constitution and Bill of Rights, but we are beholden to his wife, Dolley, for another one of his important constitutional contributions. Madison took notes during the Constitutional debates. He attended every session and noted every speech, he claimed, except the most inconsequential. Scholars have relied on Madison’s efforts to understand the flow of Constitutional proposals, counterproposals, and compromises. Madison’s notes have been invaluable for understanding our Constitution, but we should be grateful for Dolley for their publication.

Although Madison was meticulous in taking and keeping the notes, he merely stored them for most of his life. It was only after his Presidency, when he had retired to Montpelier, that he started to put them into publishable form. Dolley aided him in this, but after Madison died, Dolley finished the project.

It was Dolley who got them published. In doing so, she may have been thinking more about her widowed poverty than about future scholars, but she convinced Congress to buy Madison’s constitutional notes, and they were published in 1837, on the fiftieth anniversary of the constitutional debates.

Any law student knows that in that half century before Madison’s notes were published, the Supreme Court handed down major decisions about the Constitution that helped set the path of our country. Many constitutional scholars today urge that the only legitimate way to interpret the Constitution is to enforce what it originally meant. The late publication of Madison’s notes, however, highlights that the early Supreme Court Justices rendered their opinions without a basic source for understanding the original intentions of the framers of the Constitution. If you read those early decisions, you will realize that the Supreme Court was not interpreting the Constitution through an originalist lens. If you read Madison’s notes, you will not find the framers mandating that “originalism” was the proper to way view the Constitution. If you delve further, you will find that “originalism” is largely a late twentieth century invention by a few constitutional scholars and judges. “Originalism” is not supported by the original intentions of the framers and adopters of the Constitution.  Ironic.

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