We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison's intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language. Madison's interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.
Mary Sarah Bilder is professor of law and Michael and Helen Lee Distinguished Scholar, Boston College Law School <[email protected]>. This piece has benefited from comments of Bernard Bailyn, Warren Billings, Ann Blair, Alfred Brophy, Hamilton Bryson, Morris Cohen, Daniel Coquillette, Charles Donahue, David Hall, David Konig, David Mackey, Maeva Marcus, David Mattern, Kent Newmyer, David Seipp, Aviam Soifer, and Kevin Van Anglen, the Harvard Law School Faculty Colloquium, Boston College Summer Brown Bag Workshop, and Suffolk University Law School's Comparative Law & Society Speaker Series, the anonymous readers for this journal, and from assistance of Andrew Golden, Michael Kaupa, and Nicole Liguori.
This essay could only have been written with the invaluable help with respect to handwriting, manuscript, and archival inquiries of Barbara Bair (Library of Congress, Manuscript Division), J. H. Baker (Cambridge University), Cecilia Brown (University of Virginia Law Library), Kathy Brown (Fauquier County Courthouse, Virginia), Dee Ann Buck (Independent Researcher), Keith Buckley (Indiana University Law Library), Hannah E. Clarke (Boston College Law Library), Gayle Cooper (Small Special Collections, the University of Virginia), Peter Drummey (Massachusetts Historical Society), Roy Haywood (Wildy & Sons), Diane Jacob (VMI Archives), Helen Lacouture (Boston College Law Library), David Lemmings (University of Adelaide), Joseph Luttrell (Meyer-Boswell Books), Marguerite Most (Boston College Law Library), Jennifer Nelson (Berkeley), Barbara Oberg (Jefferson Papers), Cheryl Oestreicher (Drew University Archives), Elizabeth Prindle (Boston Public Library), Margaret Rich (Princeton, Special Collections), John Reardon (Loyola University of Chicago), Susan Riggs (Earl Gregg Swem Library, William and Mary), Amy Schindler (Earl Gregg Swem Library, William and Mary), Meredith Shedd-Driskel (Library of Congress), Phillip Seitz (Cliveden), Bill Sleeman (Thurgood Marshall Law Library, University of Maryland), Katherine Sosnoff (Boston College Law Library), Ann Southwell (Small Special Collections Library, University of Virginia), Laura Stalker (Huntington Library), James M. Storey (Boston), Anthony Taussig (London), Heather Tennies (Lancaster County Historical Society), David Warrington (Harvard Law Library), Minor Weisiger (Library of Virginia), W. Bland Whitley (Jefferson Papers), George Yetter (Colonial Williamsburg), and Georgiana Ziegler (Folger Library).