The dispute between Richard Reinsch and Randy Barnett couldn’t come at a more opportune time, since I happen to be on the road talking about constitutional “liquidation” myself.

I think I agree with much or all of what Randy writes, but 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.

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