Reinsch, Barnett and Baude on Constitutional Liquidation
At Liberty Law Blog, Richard Reinsch: The Liquid Constitution. Keypoint:
What should receive more discussion [in the originalism/nonoriginalism debate] is the notion, expressed in The Federalist essays 37, 78, and 82, of “Liquidating” the meaning of the provisions of the Constitution. Publius means by that that it is necessary to make clear terms that are apt to be contested. And what isn’t contested in the heat of conflict? Specifically the discussion in Federalist 37 is most apt for our current distressing situation. It is there that Publius discourses on the difficulty of ascertaining the boundary between federal and state powers. He states,
“Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of perception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and state jurisdictions, must have experienced the full effect of them all.”
Elsewhere in that essay, Publius notes, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series of particular discussion.”
And in conclusion:
What we must consider then is the case for a different originalism. As Gordon Lloyd observes in an essay entitled “Marshall v. Madison: The Supreme Court and Original Intent, 1803-1835″:
[T]he meaning of the Framers’s understanding is to be discovered in the decisions of the State Ratifying conventions, the records of the Federal Convention and the First Congress, and such contemporaneous expositions as the Federalist. Moreover, the Constitution requires a “liquidation of meaning” over time; put differently, Madisonian originalism requires both “initial consent” and “recurring consent.”
Public debate is how we reach “the cool and deliberate sense of the community.” As Willmoore Kendall observes:
As disciples of Publius, what we should want above all is for the relevant questions to be decided by the “deliberate sense of the community”—and the deliberate sense of the community is not about the intent of the Founders (it was, above all, that we should govern ourselves, and so prove to mankind that self-government is possible); and not, Talmudically … but about the merits of the competing policy alternatives amongst which we, as a self-governing people, are obliged to choose. Which is to say: about the appropriateness of competing policies to our conception of ourselves as a people, to our historic destiny as we understand it, to our settled views as to the nature of the good society. (1)
Progressives have looked to the Court to pave a constitutional path of egalitarianism and emancipation that eagerly departs from the text, believing, as they do, that they stand atop history and understand its architectonic flow. But originalism further enthrones the judiciary, putting our elites on the Bench, to chart a course back to the Founders. In short, we play a game of elites by relying on a few men and women in black robes. What’s the best play, though, with respect to the republican foundation of the Constitution and with regard to our long-term interests as those who value limited government? Putting authority to decide the meaning of the Constitution in the hands of the self-governing people is the superior move.
At Volokh Conspiracy, Randy Barnett and Will Baude respond (separately). Professor Barnett asks:
[H]ow is this process of a “self-governing people” deciding “the meaning of the Constitution” supposed to work? Should we have a plebiscite to decide the meaning of the foundational document by majority vote? Should they be national plebiscites, or state by state (and how would the latter be operationalized)? No doubt Mr. Reinsch would reject national or state plebiscites, favoring instead putting the “authority to decide the meaning of the Constitution in the hands of” Congress and state legislatures. Yet these bodies are comprised of a very small subset of “the people.” Congress is a mere 535 persons out of 318 million. And these legislative bodies are themselves supposed to be bound by the law of the Constitution, not make it. How then can it fall to them to interpret the meaning of the constraints imposed upon them? ...
Publius never confused “the people themselves” with their agents in the legislature. Indeed, the Framers’ “republican” form of government was designed by them to protect the liberties of the people from their legislatures (and from other governmental actors). “We the People” are truly “self-governing” insofar as we are allowed to exercise the liberties defined by our private rights. But the founders well-knew that “We the People” do not literally “govern themselves” politically. (Recall the Declaration’s phrase “consent of the governed.”) So the Constitution was put in writing precisely so it would provide the law that governs those who govern We the People.
Professor Baude adds: Some cold water on the liquidation debate. Key point:
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.
[L]iquidation 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.