William Baude Throws Some Cold Water on the Liquidation Debate

Some cold water on the liquidation debate
William Baude
The Volokh Conspiracy
April 14, 2017

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.

William Baude