The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.
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…
In my last post, I noted that there has been a growing acceptance of the general common law among originalists. One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.
Let me explore a number of cases where the common law has been recognized as legitimate by some originalists. Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction. The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.
But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law. Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law. He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.” It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.