The Constitution, Liquidation, and Originalism

Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution.  Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach.  Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people.

Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective.  One issue is the extent to which liquidation should be employed to determine the meaning of the Constitution.  Madison believed that it should be employed to the extent that the constitution was not clear.  He also believed that the meaning of an unclear provision could only become liquidated through a series of decisions.

Even if one accepts Madison’s view, there are many issues that remain open.  How does one define an unclear provision?  How many decisions are required to meet the requirement of a series of decisions?  Can a liquidated provision be unliquidated if subsequent decisionmakers raise questions about the matter?  What type of deliberation is necessary for a decision to count as part of the liquidation process?

These and other issues have been addressed by a new paper on Madison’s views on the subject of liquidation by Will Baude, which like all of Will’s work is first rate.  The paper was presented at the most recent Originalism Works in Progress Conference held at the University of San Diego.  Interesting commentary on the paper was given by Stanford’s Bernadette Meyler, who favors a common law originalism.

While the underlying paper is not yet available on SSRN, those who are interested in the idea should take a look at this video of Will’s presentation, Bernie’s commentary, and the discussion from the originalist conference.  (And while you are there, take a look at the other presentations as well.)

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says

    ” Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people.”


    ” He also believed that the meaning of an unclear provision could only become liquidated through a series of decisions.”

    It would appear inescapable that Madison’s belief AND historical practice provide support for Richard’s suggestion as these “decisions” are, in fact, made not by the people but by the Judiciary. One need only look to daily media reports on judicial decisions made by the various courts in this land. From decisions on immigration, sexual rights, the “cruelty” of lethal injections, etc to appreciate the extent to which the Judicial Branch has “enthroned” itself as the ultimate arbiter of constitutional practice and policy.

    I have been hesitant for some time to voice the same concern as does Richard, regarding the effect(s) of this “cordoning off” of constitutional meaning from the people, its elected representatives and the Executive by the Judicial Branch (partly for fear of it being viewed as simply another rant against the Black Robes). Yet, it is a real concern both for our political health and the peoples own self conception of their unique role in governance under our Republic.

    As I have previously argued, this was a far healthier, more robust political association WHEN the overwhelming preponderance of the citizenry could not name a single Justice of SCOTUS. Given now the enhanced status / stature of SCOTUS, the highly partisan and correspondingly important confirmation battles, it is evident that the Judicial Branch enjoys far too great an influence upon civic association and this status is acknowledge by the battles over confirmation. It has become a battle over “Who shall rule” – not “who shall Judge.” In short, “Whose *purposes* shall be achieved.”

    Yet, I do not see this as something that inheres solely in originalism. Any theory / method of constitutional interpretation that assumes “finality” by the Judiciary is subject to the same defect with “living constitutionalism” not only exhibiting this defect but exalting in it.

    Meanwhile, the people either simmer in frustration or passively celebrate it – never realizing the underlying rot that has beset the structure of the Republic.

    Comes now, another “theory,” “liquidation,” that while practical on its face, nevertheless, further enhances the role of the Judicial in determining how the people shall live, what rights AND more importantly WHAT OBLIGATIONS they must now assume. All this, from the subtle reasonings / divinations of the Judicial. The citizen, whether he be accepting of this enhanced role of the Judiciary or not, is virtually compelled to accommodate this usurpation, as by definition he is simply unschooled in the arcane language and meaning(s) of the Law. Simply, it is beyond his ken and he would do well to not only accept but appreciate the subtle legal minds that define the limits of his actions.

    However, all is not lost!

    In previous posts by McGinnis and Rappaport on the “Language of the Law”, both advanced the rather sensible notion that the Constitution IS written in the language of the Law. I share this belief.

    Yet, it should be also noted that McGinnis (and I think Mike as well) remarked that the “Language of the Law” is, in a sense, a “master set” that subsumes under it standard, common language that is, or OUGHT to be accessible to the common citizen. With this too, I agree.

    To deny the role of legal language in the Law is to deny the history of the Constitution, its crafting, its deployment.
    To assert, however, either by an enhanced emphasis on “liquidation”, stare decisis, etc etc, that “It is emphatically the province and duty of the judicial department to say what the law is…” diminishes the constitutional stature of the Legislative, Executive and the ultimate source of governmental authority – the people. (OK, I used the quote out of context – but for a reason).

    Had we not elevated the Judicial Branch to its current level of stardom, and had we not forgotten that while a significant portion of the constitution’s test is written in the language of the law – the majority is written in common English – we may well have had no reason to question Justice Marshall’s (and his successors) “emphatic” assertion(s).
    It is, curiously, the very “emphatic” posturing of the Judicial that has caused that Branch to now commandeer the very “plain” and common language of the text and to cause it be to be considered as simply other examples of arcane legal language INACCESSIBLE to the common citizen. In short, I am incapable or *properly* understanding that “The Congress shall make no law….). For this, i must have baptized in the rites and rituals and, more importantly, the Language of the Law. (No, Mike and John, I ain’t disagreeing with you).

    Rather, I would like to see the legal academy recognize that McGinnis and Rappaport’s assertion re: Language of the Law ALSO includes standard English ACCESSIBLE to the common citizen. I should like to see Originalism (and other doctrines) acknowledge that the Constitution was intended to be understood by the common citizen, that without this understanding proper consent could not be possible and that the text not having been changed (OK, amendments) that the common citizen ought not to be compelled to accept an false and unverifiable ignorance regarding his own governance.

    I think that McGinnis and Rappaport should consider “parsing” out those portions of text that are specifically *legal* AND are beyond the apprehension of the common citizen.

    How long before this induced passivity, this mantle of ignorance placed upon the people, transforms itself into open hostility. How long before the “people” decide to perform some liquidation of their own?

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