Originalism must construct rules of precedent that mediate between the value of following the original meaning and the value of constitutional settlement.
The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.
The issue of liquidation arises not merely from Federalist 37’s exposition of the imprecision of language but also from James Madison’s treatment of the national bank. He vehemently opposed the bank as unconstitutional when it was first proposed, but endorsed it as constitutional after a generation had passed. His grounds: that continued constitutional disputation was
precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.
In their thoughtful treatments of Madison on this topic, Caleb Nelson and Will Baude (here and here) argue that Madison meant for the Constitution’s meaning to be liquidated—that is, settled over time—only in cases where it was ambiguous or indeterminate. Both cite Madison’s correspondence as authority, especially a letter to Nicholas P. Trist (December 1, 1831) in which he distinguished between “expound[ing]” and “alter[ing]” a Constitution.
The passage requires careful attention, so, reproducing it in full:
On the subject of the Bank alone is there a color for the charge of mutability on a Constitutional question. But here the inconsistency is apparent, not real, since the change, was in conformity to an early & unchanged opinion, that in the case of a Constitution as of a law, a course of authoritative, deliberate, and continued decisions, such as the Bank could plead was an evidence of the Public Judgment, necessarily superseding individual opinions. There has been a fallacy in this case as indeed in others in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Const. This distinction is too obvious to need elucidation. None will deny that precedents of a certain description fix the interpretation of a law. Yet who will pretend that they can repeal or alter a law.
The distinction Madison draws here is not between the ambiguous and the clear, but between his (unchanged) personal view that the bank was unconstitutional according to the Constitution of 1787 and his belief that its constitutionality should nonetheless be accepted because it was the Constitution as expounded by sustained republican practice that was authoritative. Indeed, Madison never believed, either early or late, that there was anything ambiguous about the bank’s incompatibility with the Constitution of 1787.
Speaking on the topic in 1791 in one of his most famed congressional speeches, then-Representative Madison set forth his rules of constitutional construction, one of which was that where the meaning of the document was “doubtful,” an interpretation was “fairly triable by its consequences.” His point was precisely that the bank was not such a case: “Reviewing the Constitution with an eye to these positions, it was not possible to discover in it the power to incorporate a Bank.” (Emphasis added.) If it was discovered in the necessary and proper clause, “the essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed.” Nor, Madison added, could such a power be found in “the contemporary expositions given to the Constitution.” Concluded Madison:
It appeared on the whole . . . that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution, whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and he hoped it would receive its final condemnation by the vote of this House.
This is not the vocabulary of ambiguity or indeterminacy. Madison’s point, rather, pertained to the nature of republican politics.
Thus his letter to Charles J. Ingersoll, which Nelson and Baude also cite. Baude correctly notes that this June 25, 1831 letter distinguishes between the higher law of the Constitution and the subordinate law of the legislature, in the same spirit as does Federalist 53, especially in this passage of the letter:
A Constitution being derived from a superior authority, is to be expounded & obeyed, not controuled or varied by the subordinate authority of a legislature. A law on the other hand, resting on no higher authority than that possessed by every successive legislature, its expediency as well as its meaning is within the scope of the latter.
Yet note well what Madison actually says: Who does not just the obeying but also the expounding? The “legislature” does. That does not mean it does so as a matter of convenience or will. Liquidation needs a standard, and Madisonian originalism, rooted in republican self-government, is it. The question Madison means to address, and we have this from Madison himself, is whether the decisions of preceding legislatures bind future ones. They do not as a matter of law. But the question he has explicitly raised is “how far legislative precedents expounding the constitution, ought to guide succeeding legislatures, and to overrule individual opinions.”
The better analogy, the letter to Ingersoll proceeds to say, is judicial precedent, whose purpose is not merely to ascertain the precise meaning of the law but rather to settle it. Why are such precedents, “when formed on due discussion and consideration, and deliberately sanctioned by reviews and reptitions, regarded as of binding influence, or, rather, of authoritative force in settling the meaning of a law?”
The answer, the letter explains, is twofold. One is that the good of society requires that the law be known, “which would not be the case, if every Judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it.” The second, crucially, is “because an exposition of the law publicly made, and repeatedly confirmed by the constituted authority, carries with it, by fair inference, the sanction of those, who having made the law through their legislative organ, appear under such circumstances to have determined its meaning through their judiciary organ.” (Emphasis added.)
This pertains to the meaning of a law, which is the business of the judiciary. It is also important that the meaning of the Constitution be “fixed and known.” Consequently, the legislator—significantly, Madison pivots from judges to lawmakers when he turns from statutory to constitutional interpretation—cannot act on his “solitary opinions … in opposition to a construction reduced to practice, during a reasonable period of time.”
This “reasonable period of time” is the answer to Barnett’s concern that Reinsch’s liquidation is a conservative form of living constitutionalism. If that is the case, it is what I have separately called “a living constitutionalism with a slow metabolism,” and it is attributable to Madison, not Reinsch. The republican constitutional change to which Madison refers is generational, requires the sanction of the people acting through all three branches, and pertains to exposition without altering meaning—which leaves further exposition open to debate. It acts much like a heavy anchor in deep water. It is not immovably fixed to the bottom, but its weight is such that movement requires sustained and concerted force.
The alternative to a republican liquidation of the Constitution is a solely judicial one, which Madison opposed. In Federalist 51, Madison explicitly rejected referring controversies to “a will in the community independent of the majority, that is, of the society itself.” That equivalence between the majority and the society is suggestive, as is the reason not to rely on an independent will. An independent will is “at best, but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.”
That is not to say the judiciary has no role in constitutional interpretation, only that it is part of the ongoing conversation that comprises republican politics, nobly understood. Here one suspects there is less distance in practice between Reinsch and Barnett than there is in premise. (See the excellent coauthored paper by Barnett and Evan Bernick, as well as Barnett’s argument that a judicial opinion can bind parties to a case without its particular reasoning binding other branches.) But the premises matter, especially with respect to the underlying goods of republican politics.
Madison assumed there was an inherent and, dare one say, corporate and not merely individualistic good involved in politics, a commitment he shared with Aristotle, Cicero, John Locke, George Washington, John Adams and James Wilson, among ample others, and in which he was later joined by Alexis de Tocqueville and such luminaries of the 20th century American conservative movement as Willmoore Kendall and Robert Nisbet. If Reinsch is imbibing liquid courage, he is drinking in distinguished company.