Ken Kersch draws on capacious understandings of the Constitution that are not well known outside of what became the Christian right.
Liquidation and the Problem of Constitutional Settlement
Gordon Lloyd and Steve Ealy make a compelling case for liquidation, what they call “Originalism for the Living Generation,” as the most Madisonian means of settling constitutional meaning. Grounded as it is in Madisonian text and example, from The Federalist to the bank veto, the superb account Lloyd and Ealy offer is difficult to assail exegetically. But if the exegesis is airtight, the source being interpreted might still leak. Whether Madison’s account of liquidation is as persuasive as Lloyd’s and Ealy’s account of Madison requires careful attention.
As they note, Madison believed the meaning of the Constitution had ultimately to be settled—“liquidated”—by the people indicating their sustained will through all three branches of government over time. This was partly because not every provision of the Constitution was amenable to a fixed and clear meaning—both because of the obscurity of language as elucidated in Federalist 37 and because some measures would simply have to be liquidated in practice—but it is also significant that Madison felt it was true even where such a meaning could be ascertained, as in the case of the bank.
That is evidence of the primacy he placed on popular government. To be sure, Madison also understood the difference between fundamental and statutory law, which he delineated explicitly in Federalist 53: “The important distinction, so well understood in America, between a constitution established by the people, and unalterable by the government; and a law established by the government, and alterable by the government, seems to have been little understood, and less observed in any other country.”
But note here that the fundamental law is unalterable “by the government.” It is a tenet of originalism that it is unalterable by the people as well except by the mechanism of amendment. Lloyd and Ealy argue, however, for another path by which the meaning of law, though not its substance, can be settled and—as in the bank case—even altered by sustained consensus.
Lloyd and Ealy distinguish this from a living constitution by saying there are “standards and guidelines in Madisonian Originalism beyond the mere expression of political power and institutional privilege.” Yet this is less clear. They argue that these arise “from a conversation between elected officials in the several branches and levels of government and with the people over time.” This sounds like an institutional arrangement—granted, a richer, more complex and almost certainly more deliberate one than mere institutional privilege.
But it does not give us standards beyond what accepting is settled, and sometimes the wrong things get settled. Plessy certainly was settled for a time. To take less of an easy shot, the New Deal regime, about which Lloyd has written with great persuasive force, has enjoyed sustained popular consensus for more than triple the time Madison alleged constitutional agreement had endured in favor of the bank. On the Madisonian understanding, it would have to be regarded as constitutional.
What we need to specify—and I believe this complements rather than detracts from Lloyd’s and Ealy’s analysis—is that liquidation provides a method but not a standard for constitutional settlement. It tells us who decides but not how they should decide. To be sure, Lloyd and Ealy tell us that liquidation applies only where the Constitution is unclear, but we still need some guidance within the zone of liquidation itself. Without such a normative standard, the method, standing alone, generates dilemmas. If sustained consensus is the only criterion of constitutionality, we approach a democratic tautology according to which we want institutions that condition majorities to sustain the Constitution, yet whatever majorities ultimately sustain is constitutional. The only escape from such a trap is an exterior standard.
Lloyd and Ealy are not by any means hostile to such a standard. After all, they validate Brown by means of an appeal to the Declaration of Independence. I am less sanguine about that particular standard, especially in that particular case, in which I would agree with Justice Thomas that the plain language of the Equal Protection clause provides ample resources for resolving Brown. Nevertheless, the key is that there be a standard for constitutional construction.
Madison supplies one—several, actually—on his House speech on the bank bill. They include this: “Where a meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.” The key is that Madison elucidates these standards in a speech to the people’s House, not in a brief to the Court. They can serve much the same purpose Madison thought a Bill of Rights might: providing a common point of reference that, even when interpretation sparked debate, would make it possible for that debate to be productive because it would pertain to shared and authoritative text.
If that provides a standard, the ensuing questions are two: first, whence its authority, and second, how to encourage recognition of it.
With respect to the first question, Lloyd and Ealy may overstate the case, and indeed imperil their own, in accepting as “the democratic principle” the idea that “the world belongs to the living.” They recognize the implicit tension with what they call “the republican principle” of “govern[ing] oneself into ‘remote futurity.’”
The authors state that, on the Madisonian account, “the world belongs to the living but the living ought not to be stupid.” This is surely true, and Madisonian institutions do indeed discourage impulsivity. But that answers the second question—how to encourage the people to recognize the authority of originalist standards in liquidating meaning—while undermining the first: the source of their authority.
If Jefferson was right that “the earth belongs in usufruct to the living,” his conclusion also follows: that laws should govern no longer than the generation that enacted them. The real source of originalism’s authority is the authority of the dead, with which Madison replied, employing, suggestively, the metaphor of “liquidat[ing]” debts:
If the earth be the gift of nature to the living their title can extend to the earth in its natural State only. The improvements made by the dead form a charge against the living who take the benefit of them…. There seems then to be a foundation in the nature of things, in the relation which one generation bears to another, for the descent of obligations from one to another. Equity requires it. Mutual good is promoted by it. All that is indispensable in adjusting the account between the dead & the living is to see that the debits against the latter do not exceed the advances made by the former. Few of the incumbrances entailed on Nations would bear a liquidation even on this principle.
Again, I do not think this observation is incompatible with the analysis Lloyd and Ealy offer. My concern is the degree of emphasis they place on “the current generation.” The chief benefit of liquidation is transcending the authority of discrete, immediate reason in favor of a Burkean accumulation of wisdom applied to circumstance over time. (It is at least partly for this reason that, in the letter to Spencer Roane to which they refer, Madison preferred that precedents accumulate gradually by means of seriatim opinions.)
To be sure, Lloyd and Ealy offer a Burkean account in saying the range for Madison is between Jefferson’s single generation and the full range of a human life, a duration of consensus it might be necessary to extend to accommodate “remote futurity.” This Burkeanism also seems latent in their perceptive observation that “political life is more about settling issues than solving problems….”
Consequently, I might also quibble—after all, something is in a name—with the label “Originalism for the Living Generation.” What Lloyd and Ealy compellingly describe seems more like “Generational Originalism.” That is, it is not merely this generation’s originalism that settles constitutional meaning but rather the accretion of generational judgment across time. One of the ample problems with Jefferson’s argument is that generations do not pass in and out of history at distinct, marked moments. They step in and out of time’s river, overlapping, with no clear beginnings or ends.
Lloyd and Ealy are most persuasive in contrasting liquidation with judicial settlement. As they note, Federalist 51 specifically rejects solving the problem of faction by reference to “a will independent of the society itself.” Significantly, this “society itself” is a syntactical callback to the reference earlier in the sentence to the “major party.” In other words, Madison equates the majority with the whole society.
This is one of many robust commitments to popular government in both his writings and The Federalist. Lloyd and Ealy nicely capture Madison’s use of deliberation to season popular will and defang factions. There may, along the way, be some interchanging of terms. Liquidation does not, for example, seem to me to be Madison’s solution to the problem of faction. It seems more precise, instead, to say one political problem is settling the meaning of the Constitution without the distortion of faction.
Regardless, given the background commitments suffused through Madison’s thought, it would be stunning if he were to endorse popular rule in all laws except the most important one. Instead, as Lloyd and Ealy show, constitutional liquidation requires the most serious deliberation and the longest consensus for the gravest duty. In executing that duty, their essay is an incisive guide for which their readers owe our gratitude.
 It is not wholly clear to me that federalism occupies the gray space in which they would place it. George W. Carey has distinguished between the “political federalism” of the Federalist essays Lloyd and Ealy emphasize and the more fixed “constitutional federalism” of No. 39. Madison wrote late in life that Federalist 39 reflected his genuine view.