We need to move beyond naive attitudinalism and recognize that judges have preferences, but that these don't entirely control judicial decision-making.
James Madison starts off with 1) the assumption that faction and self-interest are the point of departure and the object is to end up with 2) liberty and the common good. How do we get from one to the other? One way is to change human nature and shame men into being angels. Another way is to presume that you can’t get from faction to the common good because politics is about gaming the system. Yet another is to impose a will from outside and independent of the rough and tumble of factious politics. That could be the enlightened administrative state or an independent judiciary. Yet another way, what we call Madisonian Originalism, seems rather naïve today: you get from 1) to 2) by something called the deliberative sense of the community that operates a) institutionally via the division of powers and the separation of powers and b) through the ambition and virtue of the citizens and their elected representatives. This Madisonian way is what we introduce here as Originalism for the Living Generation. Acting instantly and being decent don’t automatically go together. Meaning must be liquidated and in such a fashion that expresses the deliberative sense of the people.
The phrase, that “meaning be liquated,” or “the liquidation of meaning,” first occurs in Federalist 37, the first of 14 essays by Madison that introduce the second volume of The Federalist. Federalist 37-51 constitute a break and a fresh start to the coverage introduced in Federalist 1. These essays were published during the vital mid-January-to-early February 1788 Massachusetts Ratifying Convention and after the Antifederalists Centinel, Federal Farmer, Brutus, Cato, and Agrippa had made a significant impact on the public mind concerning the coherence of the Constitution.
The central issue can be put in the form of a question: What did the Philadelphia Framers mean when they wrote this article, that clause, and those sections of the Constitution? It is significant that the title of Federalist 37 is “Concerning the difficulties which the convention must have experienced in the formation of a proper plan.” And Federalist 51 ends with “the great difficulty of founding.” Founding is difficult and the difficulty does not go away when things are written down. We want both decent government and popular government. We must accept the democratic principle that the world belongs to the living, but the living need to grasp the full meaning of the republican principle, namely, what it means to govern oneself into “remote futurity.”
Sensible people, says Madison in Federalist 37, realize that a “faultless plan was not to be expected” concerning achieving the objectives of 1) the consent of the governed as the foundational and operational principle (Federalist 37-40), 2) a partly national, partly federal arrangement of the division of powers (Federalist 41-46) and 3), the republican principles of liberty, stability, and energy connected with the separation of powers (Federalist 47-51). Despite the improvements in the science of politics mentioned in Federalist 9, “no skill in the science of politics has yet been able to discriminate and define, with sufficient certainty” the boundaries suggested by objectives 2) and 3).
And, we emphasize here, what pertains to the founding of a constitution pertains even more to the everyday making of laws. Madison continues in Federalist 37: “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 discussions and adjudications.” (Italics added.)
Here we introduce and defend a Madisonian Constitutional Originalism, one that is based in the liquidation of meaning by discussions through time and also based on, but not exclusively based on, the language and adjudications of the Constitution itself. The language of the Constitution is the necessary condition for constitutional interpretation particularly when the “manifest tenor” of the Constitution is loud and clear. Madisonian Originalism addresses 1) the clear language of the Constitution, 2) an ambiguous clause of the Constitution, and 3) the claim that the world belongs to the living but the living ought not to be stupid. Even though language expresses meaning, language can be ambiguous. And what happens when the next, and the next, generation come along and the living are not familiar with the American Founding or what their parents or grandparents deliberated? Thus, meaning has to be liquidated through time and deliberation. And Madison’s claim is that the correct interpretation will emerge from this process.
We claim that a “Liquidated Constitution” is not just an 18th century way of saying “a Living Constitution.” Unlike the latter, there are standards and guidelines in Madisonian Originalism beyond the mere expression of political power and institutional privilege. The standards and guidelines result from a conversation between elected officials in the several branches and levels of government and with the people over time. The “Living Constitution” doctrine, by contrast, includes one or more of the following: 1) We live under a Constitution, but the Constitution is what the Supreme Court says it is, or 2) I am the President elected by the people to carry out their mandate and pretty much whatever I do is constitutional.
Decisions of the Supreme Court are often treated as constitutional amendments or the “final word” by their supporters who maintain that previously unclear provisions of the Constitution are now finally clarified. To be sure, in certain specified circumstances (as stated in Federalist 78), it is the province of the judiciary to “liquidate and fix . . . the meaning” of two contradictory laws. And when the legislature passes laws in contradiction of the “manifest tenor” of a “limited constitution” then it is the duty of the judiciary to declare such laws unconstitutional. But Court decisions are also subject to the liquidation of meaning. The judiciary, from time to time, can get a number of things wrong—see Lincoln’s First Inaugural—and the other constitutional players—including we the people—should be able to challenge, and overturn, both judicial opinions and decisions. Amendments Thirteen through Fifteen, for example, “settled” that secession is unconstitutional and that the Dred Scott (1857) decision was wrong. The amendment process is one way, perhaps even the best way under certain circumstances, to reaffirm what we the people have settled over a several generations by deliberation and choice.
Brown v. Board of Education (1954) is an activist judicial decision built on social justice jurisprudence rather than the language of the original Constitution. But it is settled. We think it is justified on Madisonian Originalism grounds even if the quality of the arguments underlying the Supreme Court decision is somewhat suspect on the grounds of Framer Intent. Its strength is in the tacit appeal to the Declaration’s foundational truth that “all men are created equal” rather than an explication of constitutional principles. Moreover, the opinion of the electorate had moved considerably on race relations since the end of World War II. By contrast, Roe v. Wade (1973) is far from being settled in the public mind even if there is a truce in the courts.
We need to recover the Madisonian originalism of the limited, but respectable, role of the judiciary and the importance of the liquidation of meaning. And that also goes for the vital, but constitutional, role of the executive in a changing world.
What do we do about drawing the line between national and state powers? Publius in Federalist 82 states that the partly national, partly federal constitution—the federal distribution of powers between the nation and the states—“cannot fail to originate questions of intricacy and nicety. . . . Time only can mature and perfect so compound a system, liquidate the meaning of all the parts, and adjust them to each other in a harmonious and constituent WHOLE.” The closest we come in The Federalist to some sort of definitive expression of the division of powers between the general and state governments occurs in Madison’s Federalist 45. “The powers delegated by the proposed constitution are few and defined. Those which are to remain in the state governments, are numerous and indefinite.”
There is an expectation of jostling and politicking between the levels of government that is built into the original Constitution. As numerous scholars, and Chief Justice John Marshall, have pointed out, the language here, and in the Tenth Amendment, does not say the powers not “expressly” delegated to the general government are reserved to the states. And in the very next paragraph in Federalist 45, Madison states that “war and danger” will tilt the balance in favor of the general government. Madison, himself, argued for state interposition when the general government, in effect, violated the manifest tenor of the Constitution in the 1790s. And today, we have to deal with public policy that uses the war metaphor as a justification for a robust policy by the general government and reduced role for the state governments.
So where does Madison leave us on the compound republic? In Federalist 46, he says the following:
If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the state governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it most due.
Madison answers the question concerning the foundational principle of the compound nature of the Constitution: Which level of government do the people have confidence in? Policy can be moved up or down the level of government, says Madison, in accordance with “the confidence of the people.” Today it almost seems impossible that the state and local governments can reattach themselves to “their antecedent propensities” and seek to solve local issues with a “better administration” at the local level. Moreover, the people have become settled with a larger and more intrusive federal government. Put differently, the New Deal has become part of the fabric of the regime and is thus constitutional regardless of whether it was originally deemed unconstitutional.
The Federalist seems to anticipate his later discussion of how power might swing from state to federal authority in Federalist 9, where he accepts the legitimacy of extremely weak states and a strong federal government:
The definition of a confederate republic seems simply to be, ‘an assemblage of societies,’ or an association of two or more states into one state. The extent, modifications, and objects, of the federal authority, are mere matters of discretion. So long as the separate organization of the members be not abolished, so long as it exists by a constitutional necessity for local purposes, though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy.
Madison deals with the difficulty of the separation of powers in Federalist 47-51. The point of departure is that the Congress is the most dangerous branch because majority faction is the mortal disease of popular governments. The central premise is that Congress, especially the first branch, has the constitutional means and personal motives to get its way in the end. The task is to fortify the second branch, the executive, and the judiciary, to secure the “republican principle,” namely, “the cool and deliberate sense of the community” against the intemperate and immediate will of a factious majority.
There is clearly no idea in the Madison model of interpreting the meaning of the Constitution through “living” mandates bestowed on the President by a national electorate every four years. This approach comes close to the “living Constitution” argument articulated by Franklin Roosevelt during the Great Depression and the New Deal. According to FDR, and his Progressive heroes Woodrow Wilson and Teddy Roosevelt, the Constitution was in need of a serious upgrade. Wilson thought that the separation of powers should be replaced by the British parliamentary system and, ultimately the Administrative State run by enlightened administrators. Teddy was in favor of a “new nationalism” where state boundaries were impediments to national progress. The point is that the Progressives did not care whether or not the presidential majority was factious or not. The President alone represented the “will” of the people.
The Progressive approach has been part of the fabric of American life for more than 125 years and it still attracts the “confidence of the people.” So much so that presidential elections endowed with mandates for action seem to be the only electoral game in town. Indeed, the key part of the 2016 election and the first hundred days of Trump was the nomination and appointment of a justice to the Supreme Court!
But this is a pathetic version of what it means to live under Madisonian Originalism. Madison understood that the Constitution bestowed power on the current generation, especially a majority of the current generation. But what if the current generation want their way now however much that would violate accepted constitutional principles? Madison wanted decent majority rule. He was interested in constitutional precedent, but that did not mean following the judiciary following judicial precedent. It meant the establishment of the common sense of the people through deliberation and choice. And this, in turn, involves making a distinction between a clear and ambiguous Constitution as well as more important and less important interpretations of its clauses over time.
According to Madison, the issue is how to balance the Enlightenment idea expressed by Thomas Jefferson that the world belongs to the living and the Burkean idea that careful attention ought to be paid to precedent. So, the range for Madison was between a) the current generation as expressed within a 20-year period and b) three score and 10, namely, the end of human life. Madison reflects on this “difficulty” in Federalist 49 in response to Jefferson’s suggestion that constitutional issues should be resolved on a regular basis through the calling of new constitutional conventions. Madison resists Jefferson’s suggestion because such a procedure would “deprive the government of that veneration which time bestows on everything, and which perhaps the wisest and freest governments would not possess the requisite stability.”
Why did Madison change his mind on the constitutionality of the bank whose charter he vetoed as President? His answer: He changed his mind after “a reasonable period of time” during which “successive legislative bodies” disagreed with his position. These “deliberate and reiterated precedents” trumped his initial personal position on the constitutionality of the bank even though he was President of the United States and had the constitutional authority to exercise the veto power!
But doesn’t this balancing act over time open Madison to the charge that he is a relativist and, intentionally or not, a supporter of the “Living Constitution” position? No, because political life is more about settling issues than solving problems and realizing that faction is sown in the nature of man.
Madison wrote to Spencer Roane in September 1819 expressing his opposition to Chief Justice Marshall’s argument in McCulloch v. Maryland. According to Madison, Marshall should not have endorsed a broad understanding of the Necessary and Proper Clause. Marshall was not exercising Madisonian Originalism, one that should have followed the “regular course of practice,” in order to “liquidate and settle” the meaning of disputed clauses of the Constitution. Instead, Marshall introduced a new understanding of congressional powers that would unsettle a previously settled public opinion.
He wrote the same thing to C.E. Haynes and N.P. Trist in 1831 explaining why he, as President, signed the 1816 bank bill that he had earlier vetoed on constitutional grounds. He appealed to his “early and unchanged opinion, that, in the case of a Constitution as of law, a course of authoritative expositions sufficiently deliberate, uniform, and settled, was an evidence of the public will necessarily overruling individual opinions.”
Madisonian Originalism requires ambition to fight ambition, elected officials to be attached to their institutions, and the people to exercise their ultimate power in responsible manner. We need virtue of the people and enlightened representatives, but we need to look to remote futurity. Contemporary Originalists need to realize that there has been a critique over constitutional interpretation ever since the Founding. How do you draw and enforce a line between the national and the state governments? How do you draw and enforce a line between the branches of the national government? How do you decide which level and which branch should address the problem? And why should government address the problem in the first place?
Whatever liquidation means, it should not mean what legal scholars and moral philosophers say it is. John Rawls’s Theory of Justice should not be a major factor in this discourse. or should Ahkil Amar’s understanding that the Constitution should articulate what the current Progressive thinking is on equality and popular sovereignty. Thus the Fourteenth Amendment looms large for him in the interpretation of the Constitution and the purpose of the Supreme Court is to advance the latest understandings of equality and popular sovereignty.
What do we do with the equal state vote scheme of representation in the Senate and the undemocratic Electoral College where a candidate can win the popular vote but lose the electoral vote? Aren’t these undemocratic features that are no longer pertinent to our modern understanding of democratic government? These questions, for us, help establish the point that constitutional interpretation is not just “liquidation all the way down.” When the Constitution is clear it should be adhered to or modified in accordance with constitutional procedures. What is generally clear in the Constitution are matters of structure and procedure. Generally left unclear are matters of policy. This should come as no surprise, because the Constitution was intended to be a governing, rather than a policy, document.
If the American people think that the Senate should be subject to proportional representation, there is an “easy” solution: amend the Constitution. If the American people are unhappy with the Electoral College, there is an “easy” solution: amend the Constitution. If the people are unable or unwilling to do that, abide by the rules as they stand and don’t seek to undermine the law through judicial fiat. We stand with Madison in believing that the Constitution was intended to exist into remote futurity, and that as a foundation for popular government each generation must commit itself to its principles. We stand with Madison in believing that in a popular government, the deliberate sense of the community, should, and ultimately, will rule.
This version of Madisonian Originalism will no doubt make a lot of original Originalists uneasy, but it will also make non-Originalists uneasy. There is no magic formula in human life, but there is the hope of self-government.
Each generation will experience difficulties in the formation of a proper interpretation of the Constitution. The judiciary is not the exclusive source to liquidate its meaning. Nor is the mandate delivered by the electorate every four years in the presidential election an adequate understanding of constitutionalism. Nor are law review articles supposed to settle the matter, but certainly the views expressed there can enter the realm of public opinion. Madisonian Originalism requires attachment to basic institutions and a civic virtue in the electorate and the representatives. And it requires us to think through Adam Smith’s invisible hand and F.A. Hayek’s spontaneous order as we try to explain the process by which we move from an incoherent start to a sensible outcome.