For years, since before I entered law teaching, I have been pondering two related problems. The first is what we should do about longstanding and widely-accepted interpretations of the Constitution, when we think those interpretations are not the best ones as a matter of first principles. The second is what exactly James Madison was talking about when he wrote (in Federalist 37) that "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications."

In a paper posted yesterday on SSRN, Constitutional Liquidation, I attempt to address both problems.

Read more at The Volokh Conspiracy