The Role of the Philadelphia Convention in Constitutional Adjudication

Abstract

Max Farrand's Records of the Federal Convention of 1787 shed light on the intricacies of the debates of the framers over the text of the Constitution. They do not, however, provide authoritative evidence of constitutional meaning. The Philadelphia Convention, after all, was conducted in secret, and the ratifiers, operating in thirteen distinct conventions in culturally and politically diverse states, had no access to its notes. Attempts to glean original intent or meaning from the Records face even greater challenges than attempts to discern a single, collective legislative intent from pieces of legislative history. Yet the Records are not entirely without value in constitutional interpretation. This Article suggests that Farrand's Records serve to confirm something fundamental about the nature of the original itself-that its text is the product of a hardscrabble compromise, rather than a statesmanlike articulation of broad principle. In contrast with the living Constitution theory that the Court has, at times, endorsed, the Records demonstrate that the Constitution's details are not mere placeholders for broader principles; they reflect bargained-for policy decisions. Accordingly, any theory of interpretation that treats textual detail as a marker for broader principle violates the terms of the bargain upon which the framers ― who were a veto gate in the process ― allowed the document to go forward.