Wednesday, August 8, 2018
Check out William Baude's (U. Chicago) piece Constitutional Liquidation, forthcoming in the Stanford Law Review. Baude explores James Madison's idea that the Constitution's meaning could be "liquidated" and settled by practice. From the abstract:
Constitutional liquidation has three key elements. First, there had to be a textual indeterminacy. . . . 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.
Baude says that liquidation "provides a structured way for understanding . . . departmentalism," "could provide a salutary improvement over the modern doctrine of stare decisis," "is consistent with the core arguments for adhering to tradition," and "is less susceptible to some of the key criticisms against the more capacious use of historical practice."