The Volokh Conspiracy
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For years, since before I entered law teaching, I have been pondering two related problems. The first is what we should do about longstanding and widely-accepted interpretations of the Constitution, when we think those interpretations are not the best ones as a matter of first principles. The second is what exactly James Madison was talking about when he wrote (in Federalist 37) that "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."
In a paper posted yesterday on SSRN, Constitutional Liquidation, I attempt to address both problems. (Some earlier excellent work by Caleb Nelson inspired me and marked my path.) Below are the abstract and then the introduction.
James Madison wrote that the Constitution's meaning could be "liquidated" and settled by practice. But the term "liquidation" is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.
Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could "expound" the Constitution, but could not "alter" it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction" – a real or imputed popular ratification.
While this paper does not provide a full account of liquidation's legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.
And from the introduction:
Today's constitutional law looks to the past. The central document, of course, is an old one whose age and origins cause constitutional debate. And day-to-day judicial adjudication is often dominated by precedent, the examination of past court decisions. But precedent and originalism do not exhaust the role of historical argument in constitutional law. Constitutional law is also rife with claims of authority by historical practice. Historical practice is not quite the same as precedent, because it expands well beyond judicial opinions. Historical practice is not quite the same as originalism, because it frequently looks to what has happened in the generations after a text was originally written.
Yet theories of how exactly such practice works as a source of constitutional meaning are surprisingly scant, giving rise to the recent allegation that "there has been little sustained academic attention to the proper role of historical practice in the context of separation of powers" and to the response that "[h]istorical practice is a slippery, unhelpfully capacious notion masquerading as a mid-twentieth-century neutral principle."
Meanwhile, the history of constitutional law has also looked the future. Over decades, James Madison carefully revised his notes from the Constitutional Convention with an eye to eventual public consumption. In Congress after the Convention, Madison warned his new colleagues of the importance of their constitutional debates: "The decision that is at this time made will become the permanent exposition of the constitution; and on a permanent exposition of the constitution will depend the genius and character of the whole government." He returned to these themes throughout his career, ever attentive to how political practice would set a precedent for tomorrow's constitutional law.
This paper attempts to unite that past and present. It reconstructs James Madison's theory of post-enactment historical practice, sometimes called "liquidation," as in: "All new laws . . . are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." Liquidation was a specific way of looking at post-Founding practice to settle constitutional disputes, and it can be used today to make historical practice in constitutional law less slippery, less capacious, and more precise.
The problems of how to reconcile text and precedent, of how to mediate between fixation and contestation, of how to be an originalist in a fallen world – none of these is new. And none of them was lost on Madison. His articulation of liquidation over the course of his life can be seen as an attempt to solve these problems – to explain the role of precedent in a system of text; to allow stability without forfeiting constitutional faith; to allow constitutional updating while adhering to original meaning.
This focus on Madison is expository and conceptual, not dictated either by history or constitutional law. Madison was not the only one to use the specific term "liquidation," nor to avail himself of the general framework of settlement through constitutional practice. And constitutional law, even on originalist premises, is not limited to the views of James Madison. Rather, this paper examines the concept of liquidation through Madison because Madison had an unusually extensive, thorough, and systematic discussion of it. Having his theory of it in hand will let us decide whether it is normatively desirable and help us explore whether it was a widespread part of the law at the Founding, issues this Article will also begin to sketch out. But before we can proceed to those questions, we must know what it is.