Monday, February 11, 2019

Resisting Gloss's liquidation

Neil Siegel

In recent years, legal scholars have become increasingly attentive to the constitutional role played by historical governmental practice in discerning the Constitution's separation of powers. Theories of “historical gloss” in particular have highlighted the role of historical practice and attempted to situate it within constitutional theory. The U.S. Supreme Court, in recent decisions, has also emphasized such practice. Although it is easier to accommodate a role for post-Founding practice within non-originalist approaches to constitutional interpretation, some originalist scholars, most recently Will Baude, have also sought to take account of at least some of that practice, under the label “Madisonian liquidation.”

It is important to understand the originalist turn to historical practice. Unlike the changes in originalist theory over the years—from a focus on the intentions of the Framers, to the understandings of the ratifiers, to the original public meaning of the constitutional text—and unlike the originalist embrace of judicial precedent and the idea of “constitutional construction,” originalist efforts to claim a greater role for historical practice as within the originalist project have not yet received much attention or recognition as such. Like those other “impurifications” of strict originalism, however, the originalist turn to practice presents originalists with difficult tradeoffs.

In a new article, my Duke colleague Curt Bradley and I explain the originalist turn to practice, describe the historical gloss approach, compare gloss with both the narrow and broader accounts of Madisonian liquidation respectively developed by Caleb Nelson and Baude, and suggest that the differences between gloss and liquidation concerning the proper role of historical practice in constitutional interpretation render liquidation less normatively attractive and less descriptively accurate than gloss. We also question the extent to which the accounts of liquidation offered by Nelson and Baude can properly be attributed to James Madison.

Here is the abstract:
The U.S. Constitution is old, relatively brief, and very difficult to amend.  In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations.  The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance.  Courts, the political branches, and academic commentators commonly give weight to this post-Founding governmental practice in discerning the Constitution’s separation of powers.  Reliance on such practice is sometimes referred to as the “historical gloss” method of constitutional interpretation.  Some originalist commentators have invoked a different term to describe the relevance of post-Founding practice to constitutional interpretation: “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.  In this Article, we first provide an account of what must be shown in order to establish historical gloss.  Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation.  We then consider the extent to which the liquidation concept differs from that of gloss and whether, insofar as there are differences, those differences render liquidation more or less normatively attractive than gloss.  We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic.  We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison.

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