In Unruly Americans and the Origins of the Constitution, Woody Holton recounts how he introduces his students to the framing of the US Constitution by playing a game. Dividing the blackboard into three sections, he invites his students to shout out their favorite clauses of the Constitution. Holton enters the clauses in the columns and asks his students to label them. Clauses like freedom of religion and speech, freedom from illegal search and seizure, and the right to bear arms end up in the third column, which the students soon recognize as the Bill of Rights. In the first column are clauses taken over from the Articles of Confederation. The second column, which typically ends up with the single entry of “checks and balances,” is the Constitution without amendments. Students struggle to label the first and second columns correctly. When they finally do, they are struck by the fact that the most popular clauses of the Constitution are not in the original document.

Holton's game serves to show that Americans think they know more about their Constitution than they really do. But he also wants to teach Americans to venerate the “Founding Fathers” less and the people who opposed them more. The delegates to the Constitutional Convention refused to include a bill of rights in the Constitution. It exists only because the so-called Anti-Federalists insisted on it.

Holton's revision can in fact be taken further. He is correct that the Federalists rejected a bill of rights. And he is certainly correct to question that “the most compelling motive for the Constitution was … to safeguard civil liberties.” But the implication that the first ten amendments were supported by the Anti-Federalists is problematic. And so is the suggestion that the first ten amendments amounted to a bill of rights.Footnote ¹

The first of these points was made long ago by Kenneth Bowling. Anti-Federalists were not at all impressed by James Madison's amendment proposals and derided them as “a tub to the whale.” This curious expression referred to the practice of eighteenth-century mariners, when troubled by a whale, to throw out a barrel, or “tub,” to divert the whale's attention away from their ship. Madison's proposals focused on procedural amendments that would not impede on the workings of the federal government, rather than on structural changes to the federal union to defend state sovereignty and circumscribe the power of the federal government, which was what the Anti-Federalists demanded.Footnote ²

Drawing on the late Pauline Maier, the second point has been made by Gerard Magliocca in a recent book addressing “How the Bill of Rights Became the Bill of Rights.” That the federal Bill of Rights became truly important only in the twentieth century is nothing new. But Magliocca shows that between their adoption and the first Bill of Rights Day in 1941, hardly anyone thought of the first ten amendments as a “bill of rights.” Madison's original proposal was in fact such an instrument. But Congress first stripped it of all references to popular sovereignty and natural rights and then placed the amendments as appendices rather than a prefix to the Constitution. Because at the time bills of rights were placed before the form of government and invariably contained declarations of political principles, no one recognized the adopted amendments as a bill of rights. Only with the popular mobilization against Nazi Germany and Soviet Russia did the first ten amendments become known as the Bill of Rights, a document celebrated alongside the Constitution as an expression of fundamental American values.Footnote ³

The realization that the Bill of Rights was not a product of the founding but an invention of a much later date challenges conventional views about the Constitution. The last few decades have been rich in similar reinterpretations, most of which have yet to be reflected in mainstream accounts of the Constitution's origins. Peter Onuf and David Armitage have explained that the Declaration of Independence was neither aimed at a domestic audience nor an expression of the philosophy of the American Revolution, but an act of diplomacy. Eliga Gould and Daniel Hulsebosch have made a similar rereading of the Constitution as an instrument designed to persuade foreign governments, merchants and capitalists that the new nation was a reliable and “treaty-worthy” international partner. Daniel Deudney and David Hendrickson have instead focused on the Constitution as a “peace pact” between the American republics that aimed to banish war from the North American continent. In yet another intervention, Gregory Ablavsky has interpreted the Constitution in part as a response to the need to deal with the “savage” nations that prevented United States’ expansion into its borderlands.Footnote ⁴ To these works can now be added two important new books by Mary Sarah Bilder and Jonathan Gienapp, which offer critical discussions of, respectively, the principal source of the Constitutional Convention and the framers’ understanding of the concept of “constitution.”

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Scholars of the founding have always relied heavily on James Madison's notes from the Constitutional Convention. Madison explained their origin in his frustration at the poor record generated by the creation of previous confederations. He therefore decided “to preserve as far as I could an exact account” of the debates in the Constitutional Convention. Using his own version of shorthand, Madison made rough notes of the speeches of delegates and then wrote out his “daily notes during the session or within a few finishing days after its close.” Selflessly, his aim was thus to furnish posterity with “material” for a history of the Constitution.Footnote ⁵

Surprisingly, scholars have largely accepted Madison's claim that his Notes were a full, accurate and impartial record of the convention despite its obvious problems. To begin with, how can the Notes possibly be complete? The convention sat for five hours each day, yet rarely do Madison's records of debates run to more than ten printed pages. His Notes may cover no more than a tenth of what was said in the convention and are undoubtedly selective. There is also the matter of Madison's homegrown method of shorthand. Take, for example, the notation “y^r. w^l. b. rch & p^r. crd^r. & db^r.. a land^d. int^st., a mon^d. α ^d a mercan^th α ^d manf^tg α ^d.” Written out in full, the sentence says “There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest, a manufacturing interest.” Working quickly to put the gist of a speech to paper, the risk of error is evident. Further error in the subsequent transcription process is also likely. Finally, what about Madison's own speeches? He was the second-most-active speaker at the Convention and he rarely spoke from prepared notes. How could he speak and record his own words at the same time?

Madison claimed to have written a fair copy of his notes immediately or soon after every session. But as Max Farrand pointed out more than a century ago in his edited Records of the Federal Convention, Madison made changes to the Notes to make them conform to the journal of the Constitutional Convention when this was published in 1819. He then made over fifty additional changes in convention speeches when Robert Yates's notes of the Constitutional Convention were published two years later. Madison's changes could be easily spotted in the manuscript because the ink of later additions had faded differently from the original writing, so that “later revisions stand out from the page almost as clearly as if they had been written in red ink.”Footnote ⁶ Farrand made light of these changes and never suggested that Madison altered the substance of speeches. Yet it is common knowledge that Madison was a partisan in the party struggles of the 1790s and that embarrassing questions were asked about his speeches in the Constitutional Convention. Is it too far-fetched to assume that Madison doctored his Notes to appear in a more flattering light to future historians of the Constitution?

Mary Sarah Bilder's Madison's Hand: Revising the Constitutional Convention explains that it is not. Her painstaking Quellenkritik shows that Madison's Notes are not a contemporary, complete and impartial record of the Convention but a document that evolved in the long years between the summer of 1787 and Madison's death in 1836. Madison could not have been the historians’ handmaid because he did not know that the convention would be successful or that the Constitution would acquire such longevity or importance. He did realize that the business of the convention was critical, however, and that careful notes would help him shape its proceedings. He therefore started a “legislative diary” for his own immediate use rather than for posterity. Many such diaries survive from the Continental and Confederation Congresses and Madison in fact kept one in the early 1780s.

The origin of the Notes meant that Madison focused on votes and arguments in the convention that impacted on his wish for structural reform of the existing union, primarily proportional representation according to population size instead of equal state representation in the legislature, a small upper house to protect property, a council of revision empowering the executive and judiciary to control the legislature, and a national government negative on state legislation. Other business was often ignored. As Bilder perceptively puts it, “Madison was not a stenographer but a political cartographer” (61). Reading the Notes as a full and impartial record of the debates in the convention, rather than as an expression of Madison's immediate interests, is deeply problematic.

As a source to the convention, the Notes have additional shortcomings. Madison gave speakers a reasoned tone that sometimes contrasts with the passionate outbreaks recorded by other notetakers. When transcribing from his rough notes, Madison imposed order on the proceedings, probably to help him better navigate the document, by summarizing the position of the speaker in the first sentence, although, as Bilder remarks, “few people begin to talk by stating the conclusion” (63). Madison also imposed his own terminology on the debate. “Other notetakers recorded an inconsistent variety of political concepts and vocabularies; the delegates do not always seem to be speaking about the same idea or in the same political language. In the Notes, however, speakers used uniform terms” (64). Finally, Madison also minimized criticism of his own speeches and gave them a more tentative tone than others had heard. Years after the convention he replaced whole sheets of the Notes containing views that by the 1790s had become a political liability.

When in 1783 Congress moved from Philadelphia to Princeton and his new quarters prevented him from writing undisturbed, Madison abandoned his legislative diary. Something similar happened at the Constitutional Convention. In June and July, Madison saw one after another of his reform proposals turn to dust. His program was unpopular and he was kept out of committees. But when the draft constitution was reported on 6 August, the convention entered a new stage where Madison came to play a more active role. Bilder notes how over the next two weeks “Madison's notetaking became increasingly disjointed and uneven” (122). With the focus now on the drafting process, recording speeches became less relevant. Committee work and illness left less time to write up the debates. Eventually, the Notes stopped. Madison may or may not have continued to take rough notes, but “[t]he entry for August 21 is the last contemporaneous glimpse in the Notes of Madison's mind during the Convention” (137).

Printed versions of Madison's Notes fail to note that the original Notes ended almost a month before the convention adjourned on 17 September, despite the notation on that date saying, “The few alterations and corrections made in these debates which are not in my hand writing were dictated by me and made in my presence by John C. Payne.”Footnote ⁷ John Coles Payne, the younger brother of Dolley Madison, turned five in the year of the Constitutional Convention. His role as Madison's secretary reveals that editing took place long after 1787. But it is only thanks to Bilder's scrutiny that we now know how extensive and prolonged this editing process was.

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Madison put his Notes aside for two full years before adding the missing record for 22 August to 17 September. Securing ratification, including writing contributions to The Federalist, and winning a seat in the first Congress required his full attention. Madison probably went back to the Notes on hearing of Thomas Jefferson's expected return to the United States from France. He was also prompted by intermittent debates in Congress about what had taken place in the Constitutional Convention, which raised awkward questions for Madison. From 1789 began a work of revision that only ended with Madison's death.

Bilder believes that Madison made his most significant revisions sometime in late 1789 or in 1790, in a move that utterly changed the nature of the document. On the basis of the official journals of the convention he added a post-21 August section to the Notes. Transcription errors in the journal copy that reappear in the revised Notes and the strong similarity of content between the journal and the Notes suggest that Madison never made rough notes from the last weeks of the convention. Where the journal is unclear and sketchy, so are the Notes.

For the period before 22 August, Madison used the journal to address matters he had ignored in the original Notes, such as the judiciary. He also corrected names, made the language more precise, moved “N.B” comments from the text to footnotes, and erased and altered speeches. “The revisions demonstrate Madison's desire to convert the Notes to resemble printed debates,” Bilder concludes. “As Madison revised, his small changes, often seemingly innocuous, reduced the confusions, ambiguities, and uncertainties of the summer of 1787. In creating an illusion of consistency, the Notes composed in the summer of 1787 were gradually lost” (198). After careful analysis of content, style and paper quality, Bilder concludes that Madison replaced three whole sheets, each folded to form four manuscript pages of the Notes. They contained his speeches from 6, 7 and 8 June. With the originals lost, the extent and nature of the changes cannot be determined with certainty. But Bilder persuasively argues that Madison sought to manipulate the record of some of his positions in the convention that had now become a liability. Controversial words recorded by other notetakers are missing from the replacement sheets, such as his contempt for the states’ aspirations to sovereignty.

Another five sheets were replaced in late 1791 or in 1792. By then Jefferson had returned and been allowed to read and copy parts of the Notes. The replacement sheets contained speeches made in late June and in July and belong to the middle part of the Notes, not shared with Jefferson. In a chapter entitled “The Influence of Mr. Jefferson,” Bilder argues that this second revision round boosted Madison's republican credentials and tempered language that sounded too Federalist. In the convention, Madison had fought for a reduction of state power, a national veto over state legislation, a small Senate, and representation of, and protection for, wealth. As Jefferson's lieutenant, such views were no longer acceptable. In speeches held on 21, 23, 26 and 29 June, and on 17 July, Madison's views had come dangerously close to those espoused by Federalists like Alexander Hamilton. These statements could not be made to disappear completely, as too many had heard them in the convention, but Madison subtly changed the wordings and deleted problematic passages that were reported by other delegates. He introduced an explicit declaration that he wished for the Constitution to establish “Republican Government” and made much more frequent use of the term in the five replaced sheets than elsewhere in the Notes. With these alterations, “Madison's purpose at the Convention had been revised to align explicitly with Jefferson's contemporary political agenda” (216).

Minor changes to the Notes continued to be made throughout the 1790s, after which Madison left the document alone for two decades. In 1819 the journal of the convention was published. Two years later a collection of documents under the title The Secret Proceedings and Debates of the Convention appeared, containing the convention notes of Robert Yates. These publications sparked a final round of revisions of the Notes. Madison had reason to be particularly concerned with the notes of Yates because they had been used by Edmond Genêt in an 1808 pamphlet that attacked Madison's presidential aspirations. Farrand observed that Madison made more than fifty changes to make the Notes better correspond to Yates's record. But Bilder explains how, rather than quoting Yates, Madison paraphrased him, to give the impression of two separate reports of the same speech. There were also substantive changes. For the 22 June–5 July period, when Yates's notes ended, Madison added no less than thirty-four speeches in whole or in part that were missing in his original Notes.

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Constitutional government means that the legislature and executive are limited by the constitution. This basic principle rests on an understanding of constitutions as “the basic legal order of the polity, which holds a special rank vis-à-vis laws and other sources of the law and which radiates into all spheres of the legal system.”Footnote ⁸ Typically, the constitution is a written document and the question of constitutionality is settled by textual interpretation, in most states entrusted to a specific institution—a supreme or constitutional court—empowered to make binding decisions on constitutional meaning.

The American founding is often celebrated as a milestone in the development of such constitutional principles. But Jonathan Gienapp's The Second Creation: Fixing the Constitution in the American Founding argues that our modern understanding of constitutions and constitutional government would have been quite alien to the founding generation. Turning the text of the Constitution into the American Constitution was a process. It unfolded in the 1790s not in the Supreme Court but in Congress, where legislators repeatedly faced the question whether their measures were constitutional. Legislators “fixed” the Constitution by agreeing that the American Constitution was contained in the text of the Constitution of 1787 and that constitutional interpretation should privilege the meaning that the men who wrote and adopted it ascribed to the text.

Gienapp follows in the footsteps of legal historians like Barbara Black and John Philip Reid in arguing that the American revolutionaries’ understanding of constitutional government was deeply rooted in English political tradition.Footnote ⁹ “Constitution” to them meant roughly what we today mean by “political system,” or what Gienapp calls “structures of powers and systems of regulation” (42). The English constitution could not be found in a single document but was expressed in many places. Although it included documents like Magna Carta and the 1689 Bill of Rights, the English constitution was also formed of parliamentary statutes and of legal practice, precedent and custom.

When the revolutionaries wrote their new state constitutions these did not replace or take precedence over “other kinds of fundamental authority—such as natural law, the law of nations, unalienable rights, Magna Carta, the Declaration of Independence, ‘common right or reason,’ or (perhaps most revealingly) the ‘Laws of the Land’” that existed independent of written forms of government or bills of rights (51). “Constitution” was a nebulous concept but Britons on both sides of the Atlantic understood the English constitution to be key principles, commonly expressed as rights or freedoms, that were flexibly applied to new situations. The result was a constitution constantly evolving. Equally important, because the English tradition did not understand the constitution to be contained in a single document, constitutional construction did not center on the interpretation of text. “Prior to 1787, American judges and lawyers tended to interpret constitutions according to their spirit, structure, and purpose. Rarely did they consider a constitution's language to be constitutive of its meaning or its defining feature” (51).

The traditional understanding of constitutions informed the proceedings of the Constitutional Convention. Madison repeatedly stressed that on their own, words counted for little. His contempt for “mere parchment barriers” was widely shared. Madison instead believed in the importance of structural and institutional mechanisms, such as the negative on state legislation and proportional representation in the national legislature, which reflected his belief that a constitution consisted of “structures of powers and systems of regulation” rather than text. Given the subsequent importance of constitutional exegesis, the relaxed attitude of the framers to central passages of the Constitution can appear surprising. For example, the “necessary and proper” clause of Article I, section 8, which would become enormously controversial, generated minimal discussion and no disagreement in the convention. But their lackadaisical approach makes perfect sense if the framers thought of the new constitution as a dynamic system to be interpreted according to its spirit and purpose, not as a text to be carefully scrutinized for meaning, if, as Gouverneur Morris put it shortly after the convention rose, “No Constitution is the same on Paper and in Life” (quoted at 107).

After the convention rose, the framers presented their labor as an “imperfect” constitution to be perfected only with time and experience. Article V allowed for amendments, which had been virtually impossible under the Articles of Confederation. More interestingly, the Constitution would be perfected through legislative discretion as lawmakers would be guided by their understanding of its spirit and purpose. Anti-Federalist critics, however, fastened on particular wordings in the document. They did so, Gienapp argues, not because of their different understanding of constitutions as text, but because they feared that the distant and unresponsive government outlined in the Constitution lacked structural protections necessary to maintain individual rights and a republican form of government. The preamble's “general Welfare” stipulation; Article I's general welfare, tax and “necessary and proper” clauses; and Article III's provisions for the judiciary were all criticized by Anti-Federalists for giving unlimited power to the federal government. In response, Federalists continued to argue that the Constitution could not be reduced to words. But they also accused their opponents of deliberately misconstruing constitutional language that was clear or even self-evident. Thus, against the participants’ intention, the logic of the debate drew attention to the words of the Constitution, ensuring that “text was now the marker, rather than merely a reminder, of constitutional substance” (101).

Gienapp continues his analysis of the “fixing” of the Constitution with a chapter each on the congressional debates over the right to remove executive officers, the first amendments, and the chartering of the Bank of the United States, and two chapters on the Jay Treaty debate. In these debates the Constitution gradually became a textual artifact that could be interpreted according to recognized rules. Although the end date of 1796 is surely arbitrary, he offers a fascinating account of the fluidity of early understandings of the Constitution and of the shifting positions of protagonists on the proper mode of constitutional construction.

In the years between 1789 and 1796 the notion of the “imperfect” Constitution faded and the leeway for legislative discretion in constitutional interpretation contracted. The removal debate confronted Congress with the problem of constitutional silence. How should the fact that the Constitution did not say whether and how executive officers could be removed be interpreted? The absurdity of unremovable officers supported the case for filling constitutional silence with legislative discretion. But Congress kept coming back to the text of the Constitution. If officers were to be appointed “with the Advice and Consent of the Senate,” was such sanction needed also for removal? Congressmen argued that certain powers, such as appointment and removal, were “incidental” to executive office. If “incidental” powers were not clearly restricted by the text of the Constitution, the reasonable assumption must be that they were granted without restriction. This doctrine of incidental and “implied” powers became even more important during the controversy over the bank, when the “Necessary and Proper” clause was used to argue that the authority to incorporate a bank was implied by the explicit powers to tax and to regulate commerce. Reflecting the older understanding of constitutions, bank supporters also argued that inherent powers could be divined from the object or aim of the national government.

Although legislative discretion and the idea that Congress should perfect the “imperfect Constitution” persisted, all agreed that there had to be limits to discretion. Yet determining rules of interpretation proved to be difficult. One possibility was to turn to the original intent of the men who drafted and adopted the Constitution. This suggestion first appeared in the removal debate but came to play a much greater role in the bank controversy and the Jay Treaty debate. Opposing the Bank of the United States, congressmen pointed out that the power of incorporation had been denied Congress by the Constitutional Convention. In his opinion on the constitutionality of the charter, Jefferson used Madison's Notes to claim that “[i]t is known that the very power now proposed as a means, was rejected as an end, by the Convention which formed the constitution” (quoted at 242, Jefferson's emphasis). In the Jay Treaty debate, Washington similarly relied on the journals of the Constitutional Convention to support his refusal to share instructions to a diplomatic envoy with the House of Representatives.

As late as 1796, the available records of both the Constitutional Convention and the state ratifying conventions were fragmentary, partial and inaccurate. Furthermore, there was no agreement whether the original intent of the Constitution's framers mattered more than the original intent of the Constitution's ratifiers. Despite such difficulties, constitutional controversies came increasingly to be settled by a turn to the past. This turn made all the more sense because Congress also “fixed” the integrity of the constitutional text. Making amendments was one of two ways to perfect the Constitution. Preparing the first amendments, Madison intended for them to be incorporated into the body of the Constitution. That would have created a continuously evolving text of no determinable age, whose meaning could not be settled by turning to the intent of the original framers. But Madison's opponents succeeded in placing the amendments as appendices to the main body of the Constitution. As a result, a clear distinction between the original constitution and its amendments was established.

The integrity of the Constitution's text was strengthened further when the original Constitution was “sanctified” by the denial of imperfection and the need for improvement. Gienapp sees the apotheosis of this development in the Jay Treaty debate when disputants

By that stage Americans had embraced a concept of a constitution as a written document that could be interpreted according to established rules. They had entered constitutional modernity.

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Bilder's and Gienapp's works both throw new light on constitutional thinking in the founding era and raise searching questions about how we study the creation of the Constitution. The former can be illustrated by two examples from the intellectual world of James Madison. Bilder's scrutiny of words, ink and paper leads her to reinterpret the significance of Madison's famous concept of the extended republic to the framing of the Constitution. Intellectual historians have found the germ of this concept in Madison's pre-convention memorandum “Vices of the Political System of the United States,” written in April 1787, and argue that he introduced the idea in the convention on 6 June and provided the fully developed theory in Federalist 10 in November. The extended republic was Madison's solution to the perennial problem of popular government majorities setting aside the common good and the rights of minorities in pursuit of self-interest. By extending the sphere of the republic, interests would proliferate, thereby making it hard, if not impossible, to form self-interested majorities. Scholars as diverse as Charles Beard and Martin Diamond have claimed that Madison's concept of the extended republic forms the ideological foundation of the Constitution and, by extension, of the American political system.Footnote ¹⁰

In contrast, Bilder argues that the relevant passage of the “Vices” memorandum was written not in April but toward the end of, or after, the Convention and that the 6 June speech was inserted into the Notes in 1790. Madison had not mentioned the extended republic in his pre-convention correspondence, which focused on the need for proportional representation and a negative on state legislation. No other notetaker heard him speak of the extended republic on 6 June. Most likely he picked up the idea in the convention, perhaps from Gouverneur Morris, processed it by rewriting “Vices,” and presented it for the first time in Federalist 10. Retrospectively inserting the concept in the 6 June speech helped boost Madison's reputation. His structural remedies all lost in the Convention but “shifting the focus away from his original losing structural solutions and toward an insight about size, Madison made himself a prophet of the future Constitution” (199). Bilder portrays Madison not as “the intellectual father of the Constitution” but as a dynamic thinker whose “constitutional ideas were nurtured through participation in Convention discussions and the endeavor of taking and revising the Notes” (7). But Madison's dynamism makes it difficult to claim that the convention created an extended republic as the remedy for the ills of popular government.

The analyses of Bilder and Gienapp can also be used to address the so-called “James Madison problem,” i.e. the apparent inconsistency between the Madison who (along with Hamilton) advocated a strong national government in the 1780s, and the Madison who (allied to Jefferson) advocated limitations on federal power and fretted over state sovereignty in the 1790s.Footnote ¹¹ Some scholars have downplayed this inconsistency, but Bilder and Gienapp describe a dramatic conversion from an extreme nationalist to a states’ rights position within only a few years. In the convention, Rufus King, William Paterson and Robert Yates all heard Madison deny that the American states were sovereign. Instead he presented them as “corporations” possessing only the power to pass “bylaws.” This controversial statement does not appear in the Notes because Madison later replaced the original sheets that recorded this particular debate. Tellingly, when Yates's notes were published thirty years after the convention, Madison insisted that he had been willfully misrepresented.Footnote ¹²

In the Convention, Gienapp writes, Madison at first opposed the enumeration of federal government powers in the Constitution and accepted enumeration only when it became clear that the “necessary and proper” clause “meant that enumeration made no substantive difference” to the exercise of power (100). In the Virginia ratifying convention he defended the “necessary and proper” clause and the principle of implied powers because a full enumeration would “have involved a complete digest of laws on every subject to which the Constitution relates” (quoted at 108). Madison's preference for a relatively unfettered national government was also evident in his amendment proposals. Not only did he fail to impose limits on key fiscal, military and diplomatic powers, but he also struck out the word “explicitly” in the tenth amendment's stipulation that “powers not delegated” to the federal government were reserved to the states and the people. Madison thereby ensured that the amendment did not preclude federal “powers by implication” (quoted at 195). Eighteen months later a very different Madison made his appearance in the bank controversy. He now advocated an interpretation of the Constitution that limited the federal government to the exercise of explicitly enumerated powers only and described the enumeration of powers as the “essential characteristic” of government under the Constitution (quoted at 229). It was a complete and dramatic change of mind brought about by the fear of Hamilton's policies as Secretary of the Treasury.

Bilder and Gienapp also challenge how we study the Constitution's origins. Bilder's minute critique of Madison's Notes is about much more than the need for a new critical edition. Her main point is that the nature of the paper trail has inflated Madison's role in the creation of the Constitution. Because scholars view the convention through the lens of the Notes, the Constitution has come to be seen as Madison's private project. Histories of the Constitution typically start with Madison's pre-convention preparations, such as the “Vices” memorandum; recount how his reform proposals were thwarted by unsympathetic convention delegates; and end with Madison's disappointment at the outcome of the convention. But privileging Madison is neither the only nor the best way to understand the collective endeavor of framing the Constitution. The paucity of sources would make such an attempt difficult, but it would nevertheless be an intriguing experiment to write the history of the Convention without reference to Madison's Notes. In a separate study of the official records of the Convention Bilder has suggested that such an alternative history might focus less on the private notes of delegates and more on the procedure of the convention and on the “draft constitutions” of the committee reports of 6 August and 12 September, interpreting the “1787 constitution” not as a text but as “a series of words, structures, votes, compromises, and alterations done in Convention.”Footnote ¹³

If Bilder questions Madison's significance for understanding the Constitutional Convention, Gienapp questions the Constitutional Convention's significance for understanding the Constitution. Even scholars who reject original intent as a theory of constitutional construction emphasize the Constitutional Convention and the ratifying convention when writing about the origins of the Constitution. But Gienapp argues that because the framers did not share our understanding about the meaning of “constitutions,” their intentions are not necessarily relevant to what the Constitution has become. Regardless of whether or not we agree that the process had run its course by 1796, understanding the Constitution involves understanding how the text produced by the Constitutional Convention in 1787 became the American Constitution in the modern sense of the term. That development took place only after the convention rose and we should shift our focus accordingly.

Bilder's rejection not only of Madison but of his Notes as the key to unlock the meaning of the Constitution is, if taken seriously, a profound challenge to studies of the founding. Gienapp's contribution is less radical because historians have always accepted that the founding is a process that extended beyond the Philadelphia Convention. Yet his readiness to analyze the Constitution in action, as it were, in the halls of Congress rather than in the federal courts, shows the fruitfulness of a more expansive approach to investigations into the meaning of the Constitution.Footnote ¹⁴

Beyond the discipline of history, Bilder's and Giennap's insistence that the meaning of the Constitution was invented and, by implication, can therefore be reinvented, have divided progressive and conservative constitutional commentators along predictable lines. The controversy, of course, reflects the importance of the Constitution to American politics and national identity and the perspective of the historian is only one of many. In the end it seems a fair guess that too much is at stake for the meaning of the Constitution to be settled by historical inquiry. But it is testimony to the rejuvenation of the field of founding studies and to the achievements of Bilder and Gienapp that their investigations into the nation's origins have sparked debates about its future.