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I have looked into the mistake theory. First, I note that Congress is still credited with publishing the law it meant to publish, and any claim of error must come with the highest standard of proof. Pinckney McElwee’s article makes a number of statements, including the key testimony of Madison alleging mistake, without citation to any documentation. We cannot dislodge published law on an undocumented and unreviewable interpretation.

Furthermore, there is a credibility issue. Madison was involved in the creation of the 1790 Act as well. Did he have a brain fart on the first pass? Or did he have some sort of “conversion” on the issue in the five years intervening? Or does McElwee fail to provide a citation because he cannot back up his claim with the actual words that were recorded?

Peace,

Pinckney McElwee’s article makes a number of statements, including the key testimony of Madison alleging mistake, without citation to any documentation. We cannot dislodge published law on an undocumented and unreviewable interpretation.

Exactly what I thought when it was first mentioned. Where is this assertion established by contemporary documents?

Or does McElwee fail to provide a citation because he cannot back up his claim with the actual words that were recorded?

I don't think he made it up. I think he has a source, we just don't know what it is. When I first started researching this issue, I was shocked to discover how many significant documents have not been textualized and put online. There is a lot of stuff you just can't see without going to Washington and looking in the archives.

I actually looked into hiring someone from Washington to look up some docs for me. There are actually several companies that do this sort of thing.

In any case, I consider this to be a promising lead, and perhaps we'll find out McElwee's source.