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Susan Carle: Liquidation and the Fourteenth Amendment
Michael Ramsey

Susan Carle (American University Washington College of Law) has posted Liquidation and the Fourteenth Amendment (Florida Law Review, forthcoming) (66 pages) on SSRN.  Here is the abstract:

In Dobbs v. Jackson Women’s Health Center and New York State Rifle & Pistol Association v. Bruen, the Court announced that henceforth it will interpret the Fourteenth Amendment by determining original public meaning at a very concrete level of specificity as based on laws in effect on the date of the Fourteenth Amendment’s ratification, an approach I refer to as maximum-specificity public meaning analysis. As Justice Barrett observed in her concurrence in Bruen, however, that approach will give rise to many difficult questions. James Madison’s concept of liquidation may provide a helpful though limited supplement in this situation, which can help avoid some of the problems maximum-specificity public meaning analysis promises to produce in its insistence on returning to outdated social mores and ignoring constitutional principles that are fundamental to constitutional law today but developed after the Fourteenth Amendment’s adoption.

This Article undertakes a preliminary exploration of what difference it might make to apply liquidation principles to the Fourteenth Amendment. This proposed approach bypasses the ongoing wars between various camps of constitutional interpretivists to find an area of partial agreement that can allow Fourteenth Amendment jurisprudence to develop without a wrenching return to nineteenth century mores.

Specifically, liquidation analysis applies to the interpretation and application of ambiguous constitutional provisions, especially ones that were novel or not well understood at the time of their adoption. Some key aspects of the Fourteenth Amendment are irrefutably ambiguous in this sense. Those ambiguous aspects include (1) what rights the Fourteenth Amendment protects, (2) to what groups its protections extend, (3) what work the respective clauses in Section 1 of the Amendment do, and (4) to what degree Section 5 alters the federalism balance of the original constitution. This Article concludes that liquidation cannot help resolve the contemporary disputes about the latter two aspects of the Fourteenth Amendment’s meaning because those matters still have not been liquidated, but that liquidation can be helpfully applied to the first two aspects of the Fourteenth Amendment’s meaning, producing conclusions that reduce the discord between maximum specificity originalism and contemporary constitutional law principles.