James Madison, Justice Scalia, and Constitutional Interpretation

Abstract

James Madison (1751–1836), so-called “Father of the Constitution,” held consistently throughout his long public career to a version of textualism regarding constitutional interpretation. It is surprising that for the author of the authoritative notes of the Federal Convention, Madison downplayed altogether the original intent of the constitutional Framers. From 1796 until his death Madison insisted that if constitutional meaning was to be searched for outside the text, the relevant sources to consult were ratifying conventions of the states, and “other public indications” at the time of ratification. In today's parlance Madison adopted a “fair-meaning textualism” method of constitutional interpretation and rejected the “original intent” jurisprudence favored by some modern-day commentators. This textualism appears to have been the method followed by the late Justice Antonin Scalia. Madison also believed in a living Constitution–one that had life and validity breathed into it by the ratifiers, and hence the people, not by its Framers.