William Baude on Precedents and the Search for Constitutional Meaning
Precedents and the Search for Constitutional Meaning
In Federalist 37, James Madison conceded that even the best lawmakers cannot write perfectly clear laws. “All written laws,” whether the Constitution or in statutes, “are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”. These discussions happen not just in courts but in the course of actual administration.
So, when a law’s original meaning is not clear, its ambiguities can be resolved — “liquidated” — by the people themselves, through the settlement of precedents set by judges and statesmen alike. To discuss this underappreciated part of republican self-government, and its relation to more familiar notions of judicial stare decisis, Adam welcomes William Baude of the University of Chicago, author of two recent articles on these subjects.
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