The Founders and Slavery

[Michael McConnell]

In what must be the heat of debate, Paul Finkelman writes:

> it is worth
> noting in passing that at least Madison is pretty clear in both his
> actions and his statements in debate that the intentions of the
> framers don't carry any special weight or any weight at all)

As I am sure Paul knows better than anyone, Madison was not entirely
consistent in his statements about constitutional interpretive
methodology; thus at a minimum we should not call the above idea
"clear." Indeed, as far as I can tell, most of Madison's comments are
to the opposite effect. For example, in his speech on February 2,
1791, on the unconstitutionality of the proposed Bank of the United
States, he sets forth what he calls "rules" for a "right
interpretation of the constitution," saying: "In controverted cases,
the maning of the parties to the instrument, if to be collected by
reasonable evidence, is a proper guide. Contremporary and concurrent
expositions are a reasonable evidence of the meaning of the parties."
He proceeds shortly to read passages from debates in the ratifying
conventions in Pennsylvania, Virginia, and discusses various
decisions by the framers. He concludes that the power to incorporate
a Bank "was condemned by the expositions of the friends of the
Constitution, whilst depending before the public; was condemned by
the apparent intention of the parties which ratified the
Constitution."

It is true that Madision thought ratifier intent was
key, but he viewed the public statements of defenders of the
Constitution as a guide to ratifier intent.  At the ratifying
conventions, when questions about the meaning of the instrument were
raised, it was common for those who had attended the drafting
Convention to inform the ratifying convention of what had been said
there about the meaning.



-- Michael McConnell (U of Utah)