Lorianne Updike Toler, Northern Illinois University College of Law, has posted Un-fathering the Constitution:
Supreme Court Justices and judges of all stripes frequently turn to James Madison to understand the Constitution. This because he is almost universally acclaimed by legal elites as its father. However, Madison’s constitutional parentage sounds more in lore than logic.
James Madison (NYPL)
As this study shows, a careful review of recent historiography, Madison’s own writings, and new analytics tools available on the Quill Project reveal Madison as just one of a cast of characters who brought about the Convention, the Virginia Plan, and the ultimate Constitution. Immediately after the Convention, Madison considered himself and the Constitution a failure, and disclaimed any singularly unique role in its framing. His influence grew post-Convention in writing the Federalist Papers and drafting the Bill of Rights but was more modest for the unamended Constitution. James Madison is not the Constitution’s father, especially in the singular sense.
Un-fathering the Constitution has significant ramifications for constitutional law and politics. One such ramification may be seen in executive removal jurisprudence, wherein the Court’s justifications for this constitutional source of power in the absence of a removal clause turns on Madison’s vision of the Constitution. Right-sizing Madison’s role in this realm of constitutional law calls for revisiting presidential removal.
--Dan Ernst
