The Volokh Conspiracy
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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.
