Constitutional Liquidation

66 Pages Posted: 2 Aug 2018  

William Baude

University of Chicago - Law School

Date Written: July 15, 2018

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.

Keywords: Constitution, Liquidation, Madison, History, Practice, Tradition, Departmentalism, Precedent, Bank, Public Sanction

Suggested Citation

Baude, William, Constitutional Liquidation (July 15, 2018). 71 Stanford Law Review (2019), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3214035

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
699
rank
32,953
Abstract Views
2,672
PlumX