The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Some cold water on the liquidation debate

|The Volokh Conspiracy |

The dispute between Richard Reinsch and Randy Barnett couldn't come at a more opportune time, since I happen to be on the road talking about constitutional "liquidation" myself.

I think I agree with much or all of what Randy writes, but I want to speak up in defense of a particular conception of liquidation, which I think was James Madison's. Madison's notion of constitutional liquidation, properly understood, need not be hostile to originalism. My "Constitutional Liquidation" paper is still very much a work in progress, so much of the framework will have to wait until later, but at least one element of liquidation is important for these purposes: Liquidation only operated to the extent that the Constitution itself was open-ended or less than clear. Indeterminacy was a prerequisite for liquidation.

As Madison put it in a letter to his protege, Nicholas Trist, "There has been a fallacy in this case as indeed in others, in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Constitution." The requirement of indeterminacy ensured that liquidation was limited to expounding, not altering. Indeed, in a letter to Ingersoll, Madison agreed with Randy that "A Constitution being derived from a superior authority, is to be expounded & obeyed, not controuled or varied by the subordinate authority of a legislature."

So Madison's liquidation worked within the outlines of the Constitution, not as an attempt to blur them. In modern constitutional parlance, we might describe it as being a theory of construction that operates in the "construction zones" left open by the text, although I personally am not wedded to that framing.

I also agree with Randy that liquidation is compatible, indeed I would say especially compatible, with the original, departmentalist understanding of the judicial power. On that understanding, the judiciary did have special authority to bind other branches through its judgments, when issued by a court of competent jurisdiction. But its opinions were not binding in the same way, especially as to cases not before the court. The opinions, I think, can contribute to the liquidation of constitutional meaning, but in cooperation with other branches, not to the exclusion of them.

So I will be the first to agree that it is worth paying attention to the founding-era concept of liquidation. But in my view that concept turns out not to transcend originalism, but rather to be fully consistent with it.