Constitutional Law

Understanding Constitutional "Liquidation"

A new paper on an old way of resolving constitutional indeterminacies

|The Volokh Conspiracy |

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.

Abstract:

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.

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  1. Some would say our Constitution has been liquidated many times, as in the Slaughterhouse cases.

  2. Defer to strict Constitutional originalism.

    Most new laws fail to live up to Constitutional muster. They are too vague, too broad, not limiting of government enough, or there is no Constitutional authority for the law.

    1. “Defer to strict Constitutional originalism.”

      What if liquidation was part of Constitutional originalism? James Madison was there.

  3. Sounds like collapsing the wave function in quantum mechanics. We don’t know if the cat is alive or dead until SCOTUS opens the door of the box.

    1. Unfortunately, I think I’ve heard the “We won’t know what the law means until SCOTUS decides” said in seriousness before.

      1. That seems to be the point of this blog. [I say “seems to be”, because we can’t know until SCOTUS decides]. Forget “eureka” discoveries like Roe v Wade. Interpreting any legislation is equivalent to rewriting it de novo.

        If you think that SCOTUS is not a legislative body, you haven’t been paying attention.

        1. Perhaps the worst as far as constitutional philosophy are SC and other rulings that self-acknowledge the decision considered what would be the best policy for the country.

          That’s, ummm, what elections are for?

  4. “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.”

    And if you’re worried about the problem as it was then, just think about it in the context of how we pass laws now, with none of those positive attributes. :-/

  5. This is interesting stuff?and historically challenging.

    I am curious to hear if Will Baude can think of any instances of Madison’s use of “liquidate” where substituting “elucidate” (in its modern meaning) would not read naturally, while also satisfying every demand the Madisonian context seems to require.

    The antique term “pellucid”?which calls “elucidate” to mind, does it not?has always had a double usage. It was a descriptor for clear liquids?water, or gin, or the like?but in regular literary use it described clear prose, which left no doubt about meaning.

    Thus, by association, “liquidate” brings to mind pellucid fluid, which in turn invokes clarity of meaning. Also, if you take Madison’s “obscure” in its various meanings, which would not have been beyond Madison to do, it can imply not only “poorly understood,” but also “obstructed from view”?making “obscure” an antonym of “pellucid.”

    Want to get rid of obscurity? Liquidate it, and thus bring what had previously been obscured into pellucid clarity. Then finally, to pursue that course step-by-step, in multiple instances, delivers the sought-for clear understanding, by elucidation.

    As for constitutional implications, why is it necessary to suppose this extends farther than an assertion that popular sovereignty acts continuously, and that acquiescence makes the sovereignty legitimate.

  6. A liquidated practice was “a construction put on the Constitution by the Nation, which having made it had the supreme right to declare its meaning.” In other words, the people’s role as the ultimate source of binding constitutional norms made them the ultimate source of construction its meaning as well.

    Well, there’s a Rosetta Stone for you. But I’m guessing it was Will Baud, and not James Madison who put in the preceding part about, “A liquidated practice . . . . ”

    Not that I disagree. That’s how I read Madison. It’s just that as a matter of sound historical practice, that remark seems to bet a bit ahead of its skis by adding the interpretive gloss almost as if it were part of the quote.

  7. In other words, the people’s role as the ultimate source of binding constitutional norms made them the ultimate source of constructing its meaning as well. (Though, to be sure, this expression of popular sovereignty was presumably lesser in stature than the formal enactment of constitutional text, which is why it could “expound” but not “alter.”)

    The notion that Madison would debar the sovereign People from any use whatever of their constitutive power does not seem accurately originalist. That lower-case people, acting in the role of subjects, or as government actors, were thus limited makes more historical sense.

  8. I was a little surprised not to have found a reference to “liquidated damages” which I would have thought is famiiar to most lawyers and even a few non lawyers such as myself, in which “liquidated” seems to be used in the same sense as Madison’s – ie crystallisation (or collapse of the wave function as was suggested above.)

    The fact that I did not find it, does not of course mean it wasn’t there. I merely skim in an unliquidated fashion.

    I think liquidated damages also pokes a tiny hole in the notion that liquidation in this sense requires historical practice – because liquidated damages are set in advance. What liquidated is really getting at is clarfication by example or specifics. And you could, in theory, do that just as well by specifying a few hypothetical examples up front as “deemed precedents” rather than waiting for history to provide some real ones.

    We must all be familiar with reading a particularly dense abstract sentence and wondering what on Earth it means. Then we ask someone wiser and they give us some concrete examples. Once we have some concrete examples the abstract mist disappears and we understand what the complicated sentence means. Note that Madison uses the expression “more or less obscure and equivocal.” Equivocal which maps to ambiguous or vague is the afterthought. The first idea is obscurity. There are plenty of sentences that are obscure but neither ambiguous or vague. They’re just hard to figure out, and examples help us do that.

    1. Madison : “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.”

      and

      Noel Canning : it might require a regular course of practice to liquidate & settle the meaning

      are not saying quite the same thing, IMHO. Noel Canning is talking about “practice” ? which would include things like past Executive Branch practice in making Recess Appointments. But it’s not at all clear that such past practice would fall within Madison’s “discussions and adjudications” which look to me far more like court judgements, ie precedent, both decision (adjudications) and reasoning (discussions.)

  9. ===of how to be an originalist in a fallen world===

    Wonderful phrase!

  10. Seems like liquidation is just a fancy word for ‘the process of building a tradition.’

    1. Agreed, especially as the English constitutional system that was being operated under by the time that the Colonies broke away from England was a system (and still is) more built on trial and error and what everybody could agree on, rather than hard rules compromised over. The old rules were often still there on the books, but worked with or worked around. Then, as now, the colonies had a lot of laws on the books that were not actively enforced.

  11. “Liqiuidation” usually means flushing the original intent of the Constitution down the toilet.

  12. “Liquidation” is very similar to practical construction or course of performance in the contractual context. That makes perfect sense: if the reason judicial review is valid is because the constitution is a legal document that can be construed, similar to a contract (which, at bottom, is what Marbury held), then using contractual construction tools is perfectly logical.

  13. 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

    If “we” can’t stand all of this damned progress, reason, science, education, and tolerance, just vote to overrule the decisions by which your betters implemented the modernity that has become so bothersome.

    May the better ideas win. Mostly by 6-5 votes, probably.

  14. Could you give a couple of examples of subjects or questions this method would be useful to address? It seems to be limited to cases where (1) there is an established practice and (b) the issue hasn’t been addressed by the courts.

    This seems to limit its use to a single scenario, although an important one – cases where the courts want to find individual rights against longstanding practice and find longstanding laws unconstitutional. Your paper seems to basically find support in certain writings of the Framers for the otherwise common view that courts should look to history and tradition in these cases, and hence should be reluctant to find a right to do something prohibited by longstanding traditional law absent an express constitutional statement on the subject.

    But perhaps I am wrong, and there is a broader range of circumstances where this argument would apply.

    1. The obvious one is recess appointments, which was pointed out above.

  15. Give me a quick Cliff’s Notes – how does one apply the article’s techniques in a couple specific situations?

    1. Or better yet:
      What is the best example you can give for a case that will come out in a way that you would disagree with politically but that is nevertheless the right result jurisprudentially.

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