The Committee of Detail.

• Author: Ewald, William
• Position: At the Constitutional Convention of 1787 - I. Introduction through II. The Committee Documents C. Draft IV 5. Authorship of the Draft, p. 197-244

1. INTRODUCTION

   1. THE PROBLEM OF MADISON'S NOTES

      The principal source for our knowledge of the drafting of the Constitution is James Madison's Notes of the debates in the Philadelphia Convention of 1787. (1) Other delegates--Robert Yates, Rufus King, James McHenry, Alexander Hamilton--from time to time kept a sketchy diary: and there is also the official, but remarkably uninformative, Journal, which is little more than a calendar of resolutions and votes. Madison stands apart. He left behind a careful record, rich in anecdotal detail, of each day's proceedings, from the first straggling arrival of the delegates in Philadelphia until the concluding ceremonies four months later.

      It is primarily to the Notes that we owe our knowledge of the dramatic events, both human and intellectual, of that summer: the silent but powerful presence of Washington in the president's chair: Edmund Randolph's presentation on May 29 of the Virginia Plan; the initial testing of the waters as late-comers continued to arrive: the first skirmishes in early June between the delegates from the small states and those from the large; Franklin's efforts to cool tempers; then, on June 15, the submission, on behalf of the small states, of the New Jersey plan. This submission was followed by more than a month of increasingly acrimonious debate that brought proceedings to a standstill and threatened to derail the Convention altogether. The arguments of the "great debate" were punctuated by the inebriated discourse of Luther Martin and the day-long speech of Hamilton. Then, finally, on July 16, the controversy was resolved by the adoption of the "Connecticut Compromise." After July 16 the mood seems to have lightened, and the delegates turned their attention to less contentious matters. The Convention adjourned for ten days to let the Committee of Detail arrange the work that had so far been accomplished and resumed business on August 6. But this period of relative calm was to be interrupted once more in the middle of August as the delegates clashed again, this time primarily over the issue of the slave trade. A second, less honorable, compromise was reached. Then came the final negotiations, the polishing of the text by Gouverneur Morris, the signing ceremony on September 17, and the extraordinary concluding speech by Benjamin Franklin.

      Without Madison we would know little of these episodes: and the Notes form the backbone of the standard scholarly reference, Max Farrand's Records of the Federal Convention of 1787. (2) Remarkably, Madison recorded his Notes while he was himself serving as one of the most active members of the Convention--regularly proposing motions, making arguments, answering objections. As Jefferson wrote to John Adams in 1815, "Do you know that there exists in manuscript the ablest work of this kind ever yet executed, of the debates of the constitutional convention of Philadelphia in 1788 [sic]? The whole of every thing said and done there was taken down by Mr. Madison, with a labor and exactness beyond comprehension." (3)

      Jefferson's admiration is fully justified. Nevertheless, as historians have long recognized, the Notes have serious limitations. In the first place, they are incomplete. They do not record the inner workings of the Convention's various subcommittees, even if Madison was a member. They scarcely mention the (no doubt incessant) discussions and bargaining that took place out of doors. Even as a record of what was said on the floor of the State House they are manifestly deficient. The Convention met for at least five hours a day, and frequently longer. (4) But a typical entry in the Notes can easily be read aloud in ten minutes. The Notes, in other words, are not a transcription of what the delegates said, but something quite different. They are, inevitably, a summary of what Madison understood the delegates to have said, and, beyond that, of what he judged sufficiently important to record. These facts are often overlooked; and writers who parse the speeches in the Notes as though they are direct quotations are making an elementary error.

      Because of these limitations, historians of the Convention have labored to fill in the background, to get behind Madison's record of events; and a comparison of Farrand's influential monograph (published in 1913, and still in print) with Richard Beeman's comprehensive treatment a century later will show the progress that has been made. (5) About the general background--about the biographies of the delegates, about the social and economic setting, about politics and ideology, about the place of the Convention in American history--we know incomparably more. But the study of the primary texts of the Convention has languished and has remained more or less where Farrand and Jameson left it a century ago. (6)

      But there is a further and more subterranean problem. The Notes are far too polished to have been written as the speeches themselves were being delivered on the floor. Madison says that he jotted down notes, now lost, which he worked up later into the version we possess today. His own account emphasizes that the working-up occurred immediately: "losing not a moment unnecessarily between the adjournment and reassembling of the Convention I was enabled to write out my daily notes during the session or within a few finishing days after its close." (7) But Farrand pointed out that Madison sometime after 1819 altered his Notes to bring them into conformity with the published Journal, and there has long been a question about the extent and the timing of the revisions. (8)

      This issue was raised in the early 1950s by William Crosskey of the University of Chicago. Crosskey charged--explicitly in his classes, somewhat more circumspectiy in print--that Madison had engaged, years later, in a wholesale re-writing of his Notes, and that the intent was to burnish his political reputation. In other words, James Madison was "a forger." (9) Crosskey did not present persuasive evidence for his claims, which were widely dismissed; and in 1986 James Hutson concluded from a close examination of the original Madison manuscripts that the charges were baseless. (10)

      There, for a time, matters rested. But recently Mary Bilder, using new techniques of documentary analysis, has re-opened the question. Her forthcoming book examines the question of the Madison manuscript in detail, although she stops well short of Crosskey's more extreme claims. (11) The issues here go well beyond Madison. They raise the fundamental question, rarely discussed in the legal literature, of the reliability of the documentary evidence: of its accuracy, of its completeness, and of its integrity. Put bluntly: How much confidence are we entitled to place in any purported reconstruction of the events of 1787? How much do we know--how much indeed can we know-about the making of the Constitution?

   2. THE PROBLEM OF THE COMMITTEE OF DETAIL

      I wish here to focus on one neglected aspect of this problem. Madison's Notes contain a lengthy gap, encompassing ten days at the end of July and the beginning of August. During this time the Convention stood adjourned while the Committee of Detail re-worked the miscellaneous Convention resolutions into a single document. The gap itself is well known; but its significance, in my view, has been underestimated. The Committee is typically treated in a page or two, as an interlude between the more dramatic events on either side. My first claim is that this widespread view is a mistake. This ten-day gap in Madison's Notes was arguably the most creative period of constitutional drafting of the entire summer. Certainly, day for day, it was the most intensive. Far from being a mere interlude, at least in certain respects, and for certain fundamental issues, it was the main event.

      But the deeper interest of this example lies elsewhere. It raises acute questions of evidence: first, and most obviously, about the physical documents, about their completeness and reliability. But it raises as well another and subtler set of questions--not now about the reliability of the documents, but about the way those documents have been handled and understood by subsequent scholarship. Briefly: How could the full significance of the Committee of Detail have been overlooked? A detailed historiography of the Committee lies beyond the scope of this article, and I shall postpone it to another occasion. But a great deal turns on the history of the documents themselves--on the gaps in Madison's Notes, and on the fact that the Committee documents came to light in a haphazard fashion. It is important to remember, as one examines Farrand's polished volumes, that the materials he so carefully assembled were not always available. They came to light at different times; their availability to scholars, or their absence, had an effect on historical interpretation; and a particular interpretation, once established, can take on a life of its own. Farrand was confronted with an untidy mass of papers, widely scattered. He was forced, as any scholar in such a situation would be forced, to make editorial choices--choices about what to include, where to place it, what to emphasize. Of necessity, his choices were guided by his own understanding of the events of the Convention; and those choices in turn have guided the direction of subsequent research. Even the polish of the volumes can be deceptive: words on the printed page make a different impression than a hasty scrawl on a scrap of paper in the archives. The Committee of Detail offers a striking illustration of these points, and of the way in which the seemingly mundane details of archival research and textual editing can influence our understanding of the drafting of the Constitution.

      But let us now turn our attention to the Committee itself.

      1. Formation of the Committee of Detail

         The Committee came about as follows. The delegates to the Convention, after the climacteric vote of...