James Madison. (Library of Congress)

It’s been called the “foundational” story of the United States. In the spring and summer of 1787, delegates gathered in Philadelphia and labored from May through September, arguing, wheeling, dealing and ultimately hammering out a constitution for the United States. The “Federal Convention,” as it was called then, teetered on the brink of collapse several times as the delegates battled over each clause, over the shape of the presidency, over representation in the Congress and over the relative powers of the states vs. the national government, and the small states vs. the large.

It’s a dramatic story. It’s been told and retold, interpreted and reinterpreted for more than two centuries by scholars and judges alike, based largely on a single work: a tome of some 600 pages in modern book form, called “Notes of Debates in the Federal Convention of 1787 as Reported by James Madison” or more simply “Madison’s Notes,” a day by day summary of who said what about each proposition put forth by the delegates and how the votes came out on each as the document slowly evolved. The work was published after Madison’s death in 1836, when no other delegates were still living.

Their value stems in part from the fact that the no outsiders were allowed in the Philadelphia State House chamber where the delegates met and the delegates sworn to secrecy. While fragmentary notes from other delegates preceded Madison’s, none came close to telling a full story, until publication of the notes.

But now the reliability of “Madison’s Notes” as a credible contemporaneous record of what really transpired in Philadelphia is being challenged as never before in an important new book by Boston College Law School legal historian Mary Sarah Bilder called “Madison’s Hand: Revising the Constitutional Convention,” published by Harvard University Press.

Bilder, using forensic techniques to date the changes he made and historical research to describe what was happening politically when he made them, has made sense of the revisions, which began right after the convention and continued up until his death. And many of them amount to what we would now call “spin.”

While scholars have known for decades that Madison revised his notes over the years, Bilder’s research suggests that they were “revised to an even greater extent than has been recognized” to the point that “as a reliable source, Madison’s Notes are a problem.”

Scholars, she writes, “have shied away from exploring the significance of the revisions,” perhaps “from an anxiety about being perceived to accuse James Madison of manipulating the notes.”

But that does appear, from her book, to be exactly what he did.

What she found, among other things, were changes by Madison that appear to be based at least in part on how he wanted to be perceived politically at the time he made the revisions — after the convention, particularly by his confidante and ally Thomas Jefferson — rather than out of a desire for fidelity to the event. 

For example, as the slave trade fell further and further into disfavor in the years after the convention, he added language that made it seem like he had condemned it during the convention itself as “dishonorable to the National character,” words never uttered by him in public before that time, Bilder said in an interview.


(Library of Congress)

While Madison had never used those words or spoken against slavery, she said, others in the convention did, including a delegate from Maryland, Luther Martin. Indeed, she said, the comment Madison later portrayed in his revisions coming from his lips bore “an uncomfortable resemblance to the same comment he has Luther Martin making” in the original notes.

Why would Madison do this? “By the time 1789 comes around,” she said in an interview, when Madison is a member of Congress, “it’s clearer that the U.S. will pull out of the slave trade.” Madison, a Virginia slaveholder, wants to be on the right side of history.

Another potential embarrassment for Madison was his vote during the convention in favor of a proposal favored by Alexander Hamilton to have a president elected to serve “during good behavior,” in other words, a presidency enjoying the life tenure of Supreme Court justices.

By 1792, when allies of Thomas Jefferson, Madison’s closest confidante and then secretary of state, were accusing Treasury Secretary Alexander Hamilton of being a monarchist and of having promoted the establishment of a monarchy in the convention, Hamilton responded with an essay noting that “some who now were considered ‘pre-eminent for republican character'” had supported the same proposition, Bilder reports, with “Madison and the Virginians an obvious target.”


Mary Sarah Bilder (Lee Pelligrini)

As a separate journal existed with vote tallies on particular questions, there was no way Madison could deny what Hamilton was suggesting. Instead, he papered it over, adding an explanation to the notes suggesting that the vote did not represent his opinion, but was rather a tactical ploy designed to “alarm” other members of the convention into doing just the opposite, limiting the tenure of the president rather than extending it to life.

“I argue that he replaces that page,” Bilder said in an interview. “He goes back and tries to explain it [his vote] as a procedural vote …. Jefferson thinks there are these people at the convention who are monarchists. My own sense,” she said, is that Madison “tries to downplay the degree with which he was strategically sympathetic” to to some of their views.

In fact, Bilder writes, Madison replaced five sheets of his original notes that included Madison speeches at the convention “inconsistent” with republican rhetoric, eliminating specific sentences that could be used against him and Jefferson.

“He’s uncomfortable wholly rewriting things,” she said in an interview, “so he goes through and strikes the most provocative statements” he made, written in his own hand in the original notes.

Many of the changes seek to reinforce the view of Madison as a state’s rights supporter, as opposed to a founding father who worked to hold the convention in part to crush the states, which he blamed for most of the problems confronting the country under the Articles of Confederation. Indeed, Madison gave a speech and voted in favor of giving the national government a “negative” — a veto power — over state laws. In the years that followed, as he and Jefferson broke with big government nationalists like Hamilton, such views were potentially embarrassing.

“Even the smallest revisions shifted the meaning,” Bilder writes, referring to a speech featured by Madison in his original notes delivered by Pennsylvania delegate Gouverneur Morris. “‘We cannot annihilate the States,'” he quotes Morris as saying, “‘but we may perhaps take out the teeth of the serpents.'” Later, Bilder reports, “Madison deleted ‘the States.’ The sentence was considerably more ambiguous: ‘We cannot annihilate but we may perhaps take out the teeth of the serpents.’ The states were no longer serpents.”

Bilder concedes throughout the book that she is unable to divine Madison’s motivations. “Were the five sheets replaced with an eye toward publication? If Jefferson read the Notes in their entirety, the replacements suggest contemplation of the Notes as part of his political agenda. If Jefferson never read the Notes carefully … then Madison’s replacements suggest an effort to retroactively align Madison’s positions with those of Jefferson.”


(Library of Congress)

Jefferson looms large in Bilder’s book. Indeed, she reports that Madison undertook the note-taking first for himself, “but also with the belief that the Notes would be read by Thomas Jefferson,” who, contrary to modern popular perception, was not among the drafters of the Constitution but was posted in Paris as the representative of the government under the Articles of Confederation.

But over time, she found, Madison took steps to make his notes of the convention look not like a mere legislative diary, which they were, but a full-fledged account of the historic event. He did this in part by getting hold of the official journal of the convention and attempting somewhat awkwardly to fill in the blanks in his notes, which were many.

“I have come to believe,” she wrote, that Madison understood his revisions as repeated efforts to create a record — his record— of what he saw as significant in the Convention. Yet each revision increased the distance between Madison’s Notes and the actual Convention.”

After Bilder’s book, wrote reviewer Robert Landers in the Wall Street Journal, “it will be impossible to view Madison’s role at the convention and read his ‘Notes’ in the same uncomplicated way again.”