Constitutional Liquidation

My latest article on James Madison and constitutional practice, with some criticisms and related links


Earlier this month, the Stanford Law Review published my latest article, Constitutional Liquidation. I've blogged about some of the ideas here over the years, and also discussed them with what feels like nearly everybody I've encountered in the past few years, but the final abstract is below:

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 Article 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 Article 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.

Apart from the article, I wanted to share links to a few related things.

1. Last fall, I presented the article in an especially lively discussion at Harvey Mansfield's Program on Constitutional Government. You can watch a video of the proceedings, which include discussions of judicial review, judicial supremacy, the Affordable Care Act, and much more.

2. Curt Bradley and Niel Siegel already have a critique up on SSRN. In Historical Gloss, Madisonian Liquidation, and the Originalism Debate, they defend the rival concept of "historical gloss" and argue:

We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar's account of liquidation is properly attributed to Madison.

3. Finally, one lynchpin of Madison's theory of liquidation was the difference between clear text, which could not be liquidated, and unclear or ambiguous questions, which could. This puts a lot of pressure on how we decide when text is "clear," which was until recently a woefully underexained problem in legal interpretation. But there are two great new articles on this, one by Ryan Doerfler and one by Richard Re.

Here's Doerfler, Going 'Clear':

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is "clear." As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to "start with the text," and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court's search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, mostly epistemic. The second type, which this Article call uncertainty-management doctrines, instead tell a court to decide a statutory case on some ground other than statutory meaning if, after considering all the available sources, what the statute means remains opaque. The idea underlying these doctrines is that if statutory meaning is uncertain, erring in some direction constitutes "playing it safe." With each such doctrine, the question is thus whether erring in the identified direction really is "safer" than the alternative(s) — put differently, evaluation of these doctrines is fundamentally practical.

This Article goes on to address increasingly popular categorical objections to "clarity" doctrines. As this Article explains, the objection that nobody knows how clear a text has to be to count as "clear" rests partly on a misunderstanding of how "clarity" determinations work — such determinations are sensitive to context, including legal context, in ways critics of these doctrines fail to account for. In addition, the objection that "clarity" doctrines are vulnerable to willfulness or motivated reasoning is fair but, as this Article shows, applies with equal force to any plausible alternative.

And here's Re, Clarity Doctrines:

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court's certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge on a given answer. In general, debates about what type and degree of clarity to require often reflect implicit disagreements about the relevant clarity doctrine's goals. So by challenging a doctrine's accepted purposes, reformers can justify changes in clarity doctrines. To show as much, this article discusses a series of clarity doctrines and illuminates several underappreciated avenues for reform, particularly as to federal habeas corpus, Chevron, qualified immunity, constitutional avoidance, and the rule of lenity. Finally, this article acknowledges, but also discusses ways of mitigating, several anxieties about clarity doctrines, including worries that major clarity doctrines are too pluralistic, malleable, or awkward.

I'm excited and heartened by these pieces.

NEXT: New Jersey Court Strikes Down Use of Eminent Domain to Take Property to "Bank" it for Possible Future Use

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  2. The key should be that the US Constitution is very limiting for the federal government and shows that the original 13 state constitutions and the Bill of Rights set a minimum standard for protecting Americans from the state.

    The 14th Amendment made any incorporation questions moot since all federal citizens’ rights belong to all state residents.

    1. Sounds like purposivist Active Liberty to me.

      1. This is why he’s the troll known as Sarcastr()

  3. Although I’m sure Prof. Baude would never say this, I would bet that some people will take fatalistic acquiescence as equivalent to popular consent – “look, the public bitched and moaned, but eventually they lay down and enjoyed it.”

    1. The comparison doesn’t work.

      The reality is that sustained public resistance– IF YOU REALLY HAVE A SUBSTANTIAL MAJORITY OF THE PUBLIC ON YOUR SIDE- works very well. Heck, we even repealed an unpopular constitutional amendment once.

      And the other thing is it has to be a really important issue. Sure, people don’t agree with Engel v. Vitale, but the number of Americans who actually care passionately about school prayer and think it’s a crucial issue that the government and the public should waste vast amounts of time on is very small.

      The usual conservative bete noirs do not meet these tests. They are either small potatoes issues like school prayer, or they are issues where there is no consensus of the American people (abortion) or the American public disagrees with them (sodomy laws).

      But IF the Court actually decided an issue where a majority of the public was outraged along with conservatives, “liquidation” could not occur. Most likely, the Court would be forced to quickly reverse itself or limit the precedent; if that didn’t happen, there would be a push for a constitutional amendment and it would succeed.

      So the analogy to sexual assault doesn’t work.

      1. “The reality is that sustained public resistance– IF YOU REALLY HAVE A SUBSTANTIAL MAJORITY OF THE PUBLIC ON YOUR SIDE- works very well. ”

        It works very well, if it’s not one of the issues where the political class have systematically different opinions from the public. If they happen to share the public’s distribution of opinion, or don’t care, they’ll do the voters’ bidding.

        But if it’s something where they’re in agreement that the public shouldn’t get what they want, democracy stops working.

        Illegal immigration is a perfect example of this. For a couple of generations, literally, Americans have been electing politicians who claimed to want to stop it. (Even Democrats, until just a few years ago, claimed to want to stop it.) But, it didn’t get stopped. This wasn’t because stopping it was impossible. It was because the political class were in agreement that it shouldn’t be stopped. So it didn’t matter who you elected, they’d tell you what you wanted to hear before the election, and then nothing would get done.

        Why do you suppose Trump didn’t get his wall funding last year? Because plenty of Republicans who ran on building a wall were privately determined that it not happen.

        SSM was a similar issue. It could have been stopped, but the political class were more open to it than the public, and with the judiciary driving it, all they had to do was offer visible but ineffectual resistance to the judiciary, and they’d get what they wanted, and to Hell with the voters.

        1. if it’s something where they’re in agreement that the public shouldn’t get what they want, democracy stops working.

          Which the Founders saw as a virtue. Our Republic is the populism of democracy moderated by elitism of representation.
          And if you think the gulf between elites and the demos is big today, check out some of those early rebellions.

        2. Eminent domain in the form of seizing property to give to private business for a public “good” always struck me as something very few people are actually in favor of. I realize that most people are probably rationally ignorant of the policy, but if the policy were explained and polled, would it really have anywhere near popular support? This seems like a good example of the government misrepresenting the people completely, and the people basically just rolling over and taking it because it will never affect the lives of enough individuals to get any meaningful political resistance.

          But hopefully there are enough lawyer type folks around here to prevent that decision from going “clear.”

  4. Constitutional liquidation? I was expecting a death penalty post.

  5. An article could also have been about the Bills of Marque and Reprisal clause.

  6. Interesting. Madison’s original formulation seems Kantian — a manifold of indistinct objects, an imperfectly perceiving subject, and the imperfect concepts that unify them. Of course, in law, there is no perfectly attuned and timeless rational subject that discerns objects. Say the constitution says apple trees are to be planted, but given Florida and California and whatnot, you need to plant oranges, too. You can either change the fact or the law — the fact changes by a legal fiction, and the law changes by claiming that apple truly means oranges, too.

    Seems like Gadamer, actually. The principle governs, not the example, but the principle only exists in understanding the examples through history. Naismith’s game is some combination of peach baskets, Bird, and Lebron. The difficulty is, though — that’s never a settled view.

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