Interpretive Force of the Constitution's Secret Drafting History, The

Georgetown Law Journal, Aug 2003 by Kesavan, Vasan, Paulsen, Michael Stokes

INTRODUCTION

Originalism is a theory working itself pure. And it still has a ways to go: One of the kinks not quite worked out in originalism as a theory of constitutional interpretation is the weight, if any, to be given to the secret drafting history of the Constitution as a source for understanding and interpreting specific provisions of the Constitution. As originalist methodology has evolved over the past several decades from "original intent" to "original understanding" to, most recently, "original meaning," the interpretive force of the Constitution's secret drafting history has been kicked all over the field.

Do the Philadelphia Convention debates of 1787 decisively and authoritatively demonstrate the "original intent" of "the Framers," and does that count? Or is it only the "original understanding" of "the Ratifiers" in state ratifying conventions that counts, leaving a serious question about whether we should even read the Philadelphia Convention debates, let alone use them, because the Ratifiers did not generally have that source available to them? Or does neither the "intent" of the Framers nor the "understanding" of the Ratifiers properly capture the originalist's interpretive inquiry, encouraging us instead to seek only a hypothesized, objective "original meaning" of the Constitution's words and phrases? If so, what status should the Constitution's secret legislative history at Philadelphia have in a theory of "original public meaning," or any of a half-dozen close variations on the original linguistic meaning theme?

This year marks the ninety-second anniversary of Professor Max Farrand's The Records of the Federal Convention of I787,1 first published by the Yale University Press in 1911, and reprinted in 1923, 1927, 1934, and 1987. Farrand's Records represents one of the greatest scholarly efforts in American constitutional history of the last century and remains the leading reference on the proceedings of the Philadelphia Convention of 1787 in the judiciary and elsewhere.2

As is well known, the proceedings of the Philadelphia Convention-the body that proposed the Constitution for ratification by conventions assembled in the several States-were shrouded in secrecy. Just a few days after assembling in Philadelphia in May 1787, the Framers of the Constitution adopted a rule of secrecy that lasted for the duration of the Convention.3 Indeed, the proceedings of the Philadelphia Convention did not become fully public until some thirty years after the Founding, in 1819, when the federal government first published the official Journal of the Convention4 pursuant to an Act of Congress passed the previous year.5 James Madison's notes of the proceedings of the Philadelphia Convention, widely considered to be the most influential,6 were not published until 1840-more than fifty years after the Founding.7 If "We the People" did not have access to the secret drafting history of the Constitution when it was framed and adopted, why should we use it today in constitutional interpretation?

The conventional wisdom in the legal academy appears to be that it borders on "cheating" to use the secret drafting history of the Constitution as a permissible extratextual source of meaning. Under this conventional wisdom, the Constitution's secret drafting history should not be admissible evidence in proving propositions about constitutional meaning or, if admissible, should be of scant significance.8 Some of our leading scholars-including those reflecting very different ideological, political, and methodological alignments-have embraced this view, or a closely related one. From, roughly, left to right:

Professor Bruce Ackerman contends that "constitutional interpreters should place very little weight on the secret notes that Madison compiled during the Constitutional Convention . . . ."9 According to Professor Stephen Carter, "It is difficult to see why what amounts to a secret legislative history is entitled to probative value on the question of the original understanding of the lawgivers themselves."10 Professor Martin Flaherty observes that "[i]t stands to reason that the great public discussion over the document, which involved hundreds of writers for more than a year, can clarify meanings that the private drafting of the instrument, which involved fifty-five speakers during a single summer, cannot."11 Professor Akhil Amar argues that "[a]t best, [Madison's] notes should be seen as accurate but indirect evidence of the way many leaders in 1787 thought, and of the things that many are likely to have said during the ratification process in speeches and conversations of which no reliable transcript exists today."12 According to Professors Steven Calabresi and Saikrishna Prakash, "Since originalists maintain that it is the meaning of the text to the ratifiers that counts, they should give little weight to an antitextual argument derived from [secret] legislative history."13 And again according to Professor Calabresi, "[T]here are very serious reasons to question whether any weight at all should be given . . . to Madison's secret legislative history from Philadelphia . . . ."14 One very notable exception is Professor Philip Bobbitt, who has skillfully mapped six interpretive "modalities" commonly used by constitutional lawyers.15 According to Bobbitt, the "historical argument" includes the secret drafting history of the Constitution, although he too substantially discounts its potential usefulness in constitutional interpretation.16