Here's some news hot off the press -- and in fact, it's even in advance of the arrival of the most recent copy of Law and History Review in my mailbox:
Mary Bilder of Boston College Law School has published "James Madison, Law Student and Demi-Lawyer," in the May 2010 issue of Law and History Review. Bilder begins by reminding us all of something that's easily forgotten: that Madison had legal training. Bilder uses Madison's long-lost legal commonplace book -- which she identified as Madison's through handwriting analysis and also tracing the provenance of the book -- to recover some of his legal ideas. People interested in the methods of the history of the book will want to pay attention to this. But even more importantly, I think that people who think of Madison as a political theorist will find him more grounded in law than we have known.
Here is first paragraph of Bilder's article:
We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison's intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language. Madison's interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.
Allison LaCroix of the University of Chicago Law School also has an article on Madison, "The Authority for Federalism: Madison's Negative and the Origins of Federal Ideology," in the issue. Here are the first couple of paragraphs of LaCroix' article:
The Philadelphia convention of 1787 looms enormous in many accounts of U.S. constitutional history, serving as the set piece in which various and muddled worldviews, theories, interests, and allegiances gelled into a coherent science and structure of politics. The Convention thus becomes time zero in the chronology of U.S. political and constitutional development, a finite and forward-looking first moment defining, for good or ill, the terms according which subsequent debates regarding the nature of U S. government would be conducted.
The moment of origin, in other words, sometimes appears to lack origins of its own. Pre-Convention precedents provide antiquarian interest, perhaps, but are seen as offering little useful insight into the “real” legal questions concerning the post-1787 meaning and function of particular constitutional doctrines. Legal scholars sometimes trawl the Convention records for footnote fodder but ignore the context surrounding the remarks they value. Many nonlawyer historians, meanwhile, avoid writing about the Convention altogether, regarding it as a spoiled field overtrampled by the lawyers or else as a moment about which little of interest remains to be said. The strange place that the Philadelphia convention occupies in U.S. constitutional history leads to several unfortunate consequences. Chief among them is a surprising shortage of scholarly attention to the Convention as something other than an unassimilable outlier in historical time, a sui generis moment of genius that set the terms of debate but that resists efforts to place it in a broader temporal context extending before, as well as after, 1787.
For a limited time, the full text of the articles by Bilder and LaCroix and comments by David Mattern, David Konig and Peter Onuf are available on the Law and History Review website, which is hosted by Cambridge University Press. (LHR's website is usually gated, but CUP has made an exception for the next several months so that scholars whose institutions do not subscribe to LHR can have access to this discussion).