Mary Bilder's paper, "How Bad Were the Records of the Constitutional Convention," which will appear momentarily in the George Washington Law Review's symposium on the 100th anniversary of Max Farrand's edition of the Constitutional convetion is now up on ssrn.
The official records of the Constitutional Convention of 1787 have been neglected and dismissed by scholars for the last century, largely to due to Max Farrand’s criticisms of both the records and the man responsible for keeping them -- Secretary of the Convention William Jackson. This Article disagrees with Farrand’s conclusion that the Convention records were bad, and aims to resurrect the records and Jackson’s reputation. The Article suggests that the endurance of Farrand’s critique arises in part from misinterpretations of certain procedural components of the Convention and failure to appreciate the significance of others, understandable considering the inaccessibility of the official records. The Article also describes the story of the records after the Convention but before they were published, including the physical limbo of the records in the aftermath of the Convention and the eventual deposit of the records in March 1796 amidst the rapid development of disagreements over constitutional interpretation. Finally, the Article offers a few cautionary reflections about the lessons to be drawn from the official records. Particularly, it recommends using caution with Max Farrand’s records, paying increased attention to the procedural context of the Convention, and recognizing that Constitutional interpretation postdated the Constitution.