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"New digital technologies and traditional historical investigation suggest that James Madison did not finish his famous Notes until after the Convention. The Notes are the most important, and most misunderstood, account of the 1787 Constitutional Convention. This biography of the Notes follows Madison as he created and then repeatedly revised a remarkable manuscript of American history. Originally a diary kept in part for the absent Thomas Jefferson, the Notes highlighted his fascination with the political strategy of drafting. But when the Convention began to draft the details of the Constitution, the complicated process led Madison to abandon his Notes. Only after serving in Congress and drafting new constitutional amendments did Madison return to complete them. By the time the Notes were published a half-century later, the layers of revisions made the Notes appear--inaccurately--to be an objective record of the writing of the Constitution"--

In written celebration of Kent Newmyer's intellectual and collegial influence, this essay argues that the written constitution was an emerging genre in 1787-1789. Discussions of the Constitution and constitutional interpretation often rest on a set of assumptions about the Constitution that arose in the years and decades after the constitutional Convention. The most significant one involves the belief that a fixed written document was drafted in 1787 intended in our modern sense as A Constitution. This fundamental assumption is historically inaccurate. The following reflections of a constitutionalist first lay out the argument for considering the Constitution as an emerging genre and then turn to Kent Newmyer's important influence. The Essay argues that the constitution as a system or frame of government and the instrument were not quite one and the same. This distinction helps to make sense of ten puzzling aspects of the framing era.

After Donald Trump's election, Bernard Bailyn pondered the relevance of the debate on the Constitution to contemporary politics. As Bailyn wrote, the founders knew how the "debasement of free states" happened. In 2018, he perceived the constitutional system "tested as never before." The founders worried about "a charismatic demagogue" who would "cut through or ignore or distort the structure of law, install his corrupt minions in high office, protect them by use of the pardoning power." Repeatedly these fears had appeared in the debate on the Constitution. Bailyn ended by quoting James Madison's 1796 comment stressing the importance of the debates. As he was perfectly aware, over the last thirty years, the same words had been quoted repeatedly to attempt to justify textual and public meaning originalism as an interpretive methodology. But for Bailyn they gestured at originalism's fundamental misunderstanding and misguided misappropriation of the debate on the constitution.

The Constitution's apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government's treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress's passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration's early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers' generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government. Recovering the visits of the deputies to Philadelphia in 1787 and the promises they received, including Washington's handshake, suggests that the United States today should reaffirm the right and the importance of Native Nations sending deputies to Congress.

Written for the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019). Gerry Leonard and Saul Cornell's fascinating book, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780-1830s tells the story, as I put in in a blurb, "of the unsettling transformation of aristocratic-tinged constitutional republic into a partisan white male democracy." In this year where we recall the Nineteenth Amendment's re-enfranchisement of women, the Leonard/Cornell book demands that we reevaluate the way we describe the early nineteenth-century constitutional state. In short, why do we continue to use the word democracy?

On March 6, 2019, Professor Mary Sarah Bilder of Boston College Law School explored the foundations for women's political participation in the United States in Georgetown Law's 2019 Thomas F. Ryan Lecture: "The Lady and George Washington: Female Genius in the Age of the Constitution." This lecture offers a great resource for high school students looking to learn more about women in history. If you are an educator interested in showing this video in a virtual or otherwise classroom setting, feel free to contact Professor Bilder for help with discussion questions, or any other questions, at mary.bilder@bc.edu.

Magna Carta's connection to the American constitutional tradition has been traced to Edward Coke's insertion of English liberties in the 1606 Virginia Charter. This account curiously turns out to be unsupported by direct evidence. This Article recounts an alternative history of the origins of English liberties in American constitutionalism. A quarter century before the Virginia charter, provisions assuring liberties to English children born overseas were inserted in the earliest letters patent. These provisions drew on an older practice extending liberties to children born overseas. Because of these provisions, persons born in the colonies were guaranteed the same liberties as those born in England. This explanation suggests new appreciation for the interpretive flexibility of early written constitutionalism. As the liberties provisions reveal, words described the underlying concept but were not used to fix a precise definition. Thus, various words could be altered over time to ensure that the concept adapted to contemporary political and legal issues. Throughout, however, the assurance remained that those born in the colonies possessed English liberties. This Article calls this genre of early written constitutionalism "charter constitutionalism" to emphasize this elastic interpretive practice. Charter constitutionalism deserves recognition as a founding strand of American constitutionalism.

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.

Presentation by Professor Mary Sarah Bilder, as commentator, at the conference "John Adams & Thomas Jefferson: Libraries, Leadership & Legacy," held in Boston and Charlottesville, June 21-17, 2009.

This essay traces colonial American institutional development between 1570 and the 1720s. An American manner of government characterized by dual authority and supervised, constitutionally limited lawmaking produced the Revolution and the commitment to federalism. The essay synthesizes nearly a century of scholarship on imperial and colonial institutional history. Focusing on practices of governance, the essay explains the delegation of authority under charters and patents, historical development of colonial government, and significance of the corporation or corporate colony, proprietary colony, and royal colony. The essay rejects the executive-legislative-judicial (separation of powers) model for colonial governance. Instead, the essay discusses governance by the Governor and Council, Assembly, and Privy Council. Turning to the culture of law in the settlements, the essay explores colonial courts (emphasizing the courts as a branch of executive or legislative authority), legal practitioners (exploring early legal education and attorney and lawyer regulation), and colonial law (tracing the debates over the relationship of English law to colonial law and the repugnancy principle, as well as surveying early American legal publishing). An extensive bibliographic essay explaining and surveying relevant primary sources and secondary works accompanies the essay at pp. 602-614. The essay provides a useful summary for scholars interested in colonial constitutionalism, colonial settler studies, imperial governance, the history of federalism and judicial review, or for those readers wishing an overview of American colonial government.