American legal history and culture distinguishes itself both by its respect for the Constitution and its eagerness to heatedly debate its interpretation. There are those who believe in a “living Constitution,” constructed by the Framers to be flexible and changing with the mores and demands of the progressing society it serves. Others are “textualists,” prominent among them the late Justice Antonin Scalia, who believe that the Framers designed the Constitution to be a stable bedrock of fundamental law with specific avenues for amendment, to serve as a foundation upon which legislative action can build a legal edifice. They see the Constitution as concrete in what it says, and wish to leave anything it does not say to the legislative authority of the Congress and States, rather than the courts.
Interpreting the legacy of the Constitution began even before the document was ratified, and nowhere is this fact more telling than in James Madison’s Convention Notes, which were recently given new and fascinating life by Boston College’s own Professor Mary Sarah Bilder in her new book: “Madison’s Hand: Revising the Constitutional Convention.”
The Constitutional Convention of 1787 was far from a serene conclave of moderate intellectuals assembled to bring forth a new nation, but rather a grueling summer of debates, brinksmanship, last-minute compromises, and clashes between many incompatible personalities. All were nonetheless held together by a universal admission that the status quo Articles of Confederation were untenable. Since the Convention established and remarkably maintained a rule of silence, the modern view into the Pennsylvania State House of 1787 comes from the published notes of the Convention members themselves. None was more emblematic of the spirit of the time than the voluminous notes of James Madison of Virginia. However, as Professor Bilder reveals in remarkable textual research and a new interpretation of the notes’ various editions, they are incomplete in significant areas, reflecting Madison’s own preoccupation with the debates on the Convention floor and his involvement with drafting the final document. Further, Bilder suggests that Madison never intended for his notes to serve as an impartial record of the Convention, and that the notes which survive are reflections of the political necessities of an older Madison, who sought to read back into the Convention his ultimate allegiance to Jeffersonian Republicanism. By revealing Madison’s very human agendas, ambitions, and personal changes Bilder’s work further debunks the myth of the framers being an “assemblage of demigods” but reinforces the Constitution’s well-deserved admiration by emphasizing how much these very human Framers got right.
Though the Constitution is a very human document tinged with the mores of the time, and the ambitions and desires of the men who designed it, Constitutional textualists, exemplified by the jurisprudence and service of Justice Scalia, exhort their brothers and sisters on the bench to not interpret the document into modernity. To Scalia, justices who overinterpret the meaning of the Constitution risk reading their own individual morality or personal politics into the document, legislating from the bench free from public accountability. Scalia emphasized that the Constitution, cumbersome as it is to amend, was not meant to keep lockstep with the changing cultural and social landscape of the country, but rather to enable the people, through their representative legislatures, to debate the great moral, social, economic and political issues of the day. Republican democracy creates law through conversations and debates, both within and without the political process, and it should be the Judiciary’s responsibility to not unduly usurp this process. While frequently associated with the political and legal “right,” textualism is flexible, and a textualist on the bench is one of the democratic ideal’s greatest assets. It is a unique and important perspective to retain both as law students and attorneys. Even if we do not agree with some or all of textualism’s conclusions, we will grow intellectually and personally by wrestling with its implications.
Justice Scalia himself stood with the liberal wing of the court on more than one occasion to protect individual rights of expression that he personally found distasteful, such as flag burning (Texas v. Johnson), and to protect the rights of citizens accused of crimes (Hamdi v. Rumsfeld). Frequently in the minority, Scalia nevertheless, to his credit, held his ground and became renowned for his scathing, brilliantly written dissents that made the law accessible to laymen, and which often became better known than the majority opinion itself. A strong opponent, but also a universally respected and well-liked figure across the political spectrum, Justice Scalia often embodied the best that judicial restraint, constitutional textualism, and conservatism had to offer, and served as the democratic process’ greatest advocate on the Supreme Court for over three decades. In today’s socio-political climate, where so many political institutions are viewed with increasing cynicism, such a controversial intellectual and universally thought-provoking figure is rare indeed. The nation, the Court, and the judicial and political communities were fortunate to have his service, and are substantially poorer for his loss.