The Court is activist when it acts on its own discretion rather than on the basis of a clear dictate of law.
It is subtle, or at least ironic, to use a term—“liquidate”—that has lost its original meaning to initiate a discussion of constitutional interpretation. Today the word still has a legal usage, referring to the payment and settlement of debts. The OED finds that meaning in English publications at the time that Madison and Hamilton employed it to refer to construing the Constitution in The Federalist. Both Webster’s and the OED give as a secondary definition “to make clear,” with Webster’s citing Hamilton himself, and they agree that that usage of the term is now rare or obsolete. Gordon Lloyd and Steve Ealy, if I understand them correctly, intend to recover the original meaning of “liquidating” the Constitution in order to settle a score, if not a debt, with originalism, the doctrine that judges in particular and perhaps citizens in general ought to interpret the Constitution according to its meaning at the moment it was written. They want to show that according to “Madisonian Originalism” the meaning of the Constitution can be imbibed by “the living generation” since on the one hand it is not frozen in time and on the other it does not evaporate into the winds of fortune.
Madison’s name is invoked by Lloyd and Ealy, not because he fathered the Constitution, but because he husbanded it through its first half-century of development. Decisive to them was his attitude toward the incorporation of a National Bank. He argued in Congress when Hamilton’s bank bill was under consideration in 1791 that the bill was unconstitutional; no power to incorporate was given to Congress among the enumerated powers—Madison knew that his own motion to add such a power at the Philadelphia Convention had been defeated—and he apparently never changed his mind about the original intent of this omission. Nevertheless, in 1816 as president he signed a bill to charter the Second Bank, acknowledging in a subsequent letter that “a course of authoritative, deliberate and continued decisions, such as the Bank could plead, was an evidence of a public judgment, necessarily superseding individual opinion,” even his own. Lloyd and Ealy interpret this to establish that the meaning of the Constitution comes to be settled over time through a series of such public judgments—for example, that “secession is unconstitutional and that the Dred Scott decision was wrong,” later that “the New Deal has become part of the fabric of the regime and is thus constitutional,” still later that the rule in Brown v. Board of Education is the law of the land, even though Brown “is an activist judicial decision built on social justice jurisprudence rather than the language of the original constitution.” Settlement is not necessarily registered in judicial decision—Brown is settled, they think, but not Roe v. Wade—much less by presidential action, but by the people, sometimes acting through the amendment process, sometimes apparently by acquiescence in the judgment of the courts or by endorsement of their judgment in subsequent legislation.
Originalism is inadequate, they argue, because the Founders knew there was much in the original document that was ambiguous or unsettled, that needed to be worked out in practice. Madison made clear in Federalist No. 37 that the line between state and federal power was imperfectly drawn, and also the definitions of the three branches of the federal government, and Hamilton wrote memorably in No. 82: “’Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.”
Lloyd and Ealy insist that “Madisonian Originalism” or “liquidation” is not another version of the old Progressive trope, the “living Constitution,” the view that the meaning of the Constitution changes over time in response to, now even as a catalyst for, social change. As best I could discern, their argument is that some matters, such as the relation of the federal government to the states, were unsettled at the Founding and that Madison and others expected them to develop over time, while others, such as the separation of powers, were sufficiently outlined that the Progressive impulse to disregard them altogether goes too far. Moreover, the process of settlement is neither managed by one political movement along a single arc, as Progressives think, nor entirely arbitrary or random. At least that is how I interpret their enigmatic invocation of Adam Smith and Friedrich Hayek in the essay’s final sentence—unless they mean that there is a single arc, but it is the inverse of what Progressives imagine.
Constitutionalism supposes continuity, at least for the most part, punctuated by deliberate and legitimate change, and I believe that Lloyd and Ealy aim to account for both of these with their theory of Madisonian Originalism. But while I agree that the Constitution is grounded in the will of the living people of the United States, I confess to finding their essay confusing as an account of the past and indeterminate as a guide for the future. In the first place, they underestimate the technical connotation of “liquidate.” Although the passage quoted above might suggest a general use of the term, the other two passages where “liquidate” is found in The Federalist clearly refer to the specific business of judges. In fact, Lloyd and Ealy omit a crucial word in their quotation from Federalist No. 37, which should read: “…until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” The specific business of courts in a common law system is to settle particular cases within their jurisdiction, according to law, that are brought before them. Any general discussion by judges of the meaning of laws—including discussion of whether specific statutes are constitutional—is incidental to resolving the case at hand, and general pronouncements can be considered obiter dicta except insofar as they are necessary to the chain of reasoning that resolves the case. To be sure, modern judges often speak and act as though the judicial power is to sit in judgment of the law, and they have been enabled in this practice by procedural innovations from the early twentieth century, allowing declaratory judgments, permitting discretionary review, combining law and equity, facilitating class actions, and the like—not to mention the abolition of circuit-riding by appellate judges in the late nineteenth century, which had ensured that even the justices of the Supreme Court knew how to conduct a trial. No doubt Lloyd and Ealy would point out that these new practices are now a settled part of federal procedure, but not, I would hope, without noticing that the meaning of judicial power itself has been changed. Since many of these changes came about as a result of congressional legislation, it is not obvious that they are all irreversible, should the people determine that the courts have usurped their former role by pronouncing generally on what the Constitution means.
In the second place, Lloyd and Ealy, for all their emphasis on the settlement of meaning, do not make clear how to determine what interpretations are settled and when. By the 1980s the unconstitutionality of racial segregation, announced by Brown v. Board of Education in 1954, seemed settled in the law, but one might have said the same thing about racial segregation thirty years after Plessy v. Ferguson. Use of the Due Process Clause to invoke liberty of contract against economic regulation also had a strong run from the 1890s to the 1930s, only to be abandoned. Cases from Jones & Laughlin Steel in 1937 and Wickard v. Filburn in 1942 through Heart of Atlanta Motel in 1964 seemed to give Congress a blank check in regulating whatever it wished, but United States v. Lopez, invalidating the Gun Free School Zones Act in 1995, signaled an end to an infinitely elastic interpretation of the Commerce Clause, even though no precedents were overturned nor were pre-1937 cases reinstated.
An argument might be made—indeed, when most of these changes in doctrine happened, the argument was made—that interpretation of the Constitution needs to change when circumstances change in order for the Constitution itself to preserve its meaning. The argument may or may not be convincing in any given instance; in Brown it was seen by some as a way of avoiding the question of whether the Court was wrong in Plessy, while Justice Sutherland and Justice McReynolds sharply disputed Chief Justice Hughes’ reasoning about the novel character of the modern economy in Home Building & Loan v. Blaisdell and in Jones & Laughlin, respectively. Still, this sort of argument suggests a principle for when interpretation can be settled—so long as circumstances remain constant—and thus when interpretation ought to change.
Do Lloyd and Ealy think that the settlements they mention are irreversible? Obviously those embedded in constitutional amendments seem to be—although one of the clearest constitutional reversals in American history was of one amendment (18th) by another (21st)—but amendments, too, can be ambiguous, as the complicated history of interpretation of the first section of the Fourteenth Amendment makes plain. They write of the process of administrative centralization as though it were inevitable, but that is hardly certain. Even leaving aside the success of deregulation in such areas as transportation and telecommunications in the latter part of the twentieth century, is it so obvious that Madison’s adage that popular loyalty will follow “proofs of a better administration” inevitably points towards an expanding federal role, even in areas such as education and health care, and even in the face of federal incompetence or simply recognition that national opinion is sufficiently polarized that greater consensus can be achieved state by state?
As for judicial supremacy—the view that the courts have the final say over the meaning of the Constitution—Lloyd and Ealy seem not to want to admit it is now a settled part of our constitutional tradition, since the Court can be wrong as it was in Dred Scott and the political branches can respond in ways that Lincoln in his First Inaugural Address explained, but they know it has been in place for a very long time, perhaps now half of the Constitution’s existence. Since the Constitution was ambiguous about the power of judicial review, must they not, given their own account of settlement, concede primacy in the settlement function to the Court?
Ultimately the question of originalism, whatever its form, turns on the question of whether there is a reality that underlies historical change: the nature of things, and thus human nature, and thus in turn natural right, or if these are too complex or obscure to be impartially grasped, then a set of alternatives, perhaps an Aristotelian typology of regimes, one or another of which might be embraced. The value—I almost wrote, the glory—of originalism is that it draws our attention to the wisdom of the Framers about these matters and to the seriousness of their “reflection and choice” in designing a republican government that would also prove to be a good government, and powerful enough, as well, to preserve American liberty—and the wisdom of the reformers who authored amendments, sometimes to complete, sometimes to correct, the Founders’ intent. The strangest and most perplexing passage in Lloyd’s and Ealy’s essay, I thought, is this:
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.
With all due respect, I think this begs the question: Why is the next generation ignorant of the Founding, and of the re-Founding in and around the Civil War, and of the challenges to which the Progressives responded as well as those they themselves posed, and of the noble resistance to the totalitarianism of both the Right and the Left in the twentieth century? It is not for lack of educational resources, to which Lloyd and Ealy have made signal contributions over their careers. And what is the meaning of our constitutional tradition to generations of immigrants who brought their own traditions to America even as they embrace what America meant to them? Unless we can explain the value of that tradition and have the confidence to teach it as a serious and praiseworthy experiment in republican government, I do not see how to withstand the onslaught of majority tyranny—whether as egalitarian despotism or libertarian anarchism—that Lloyd and Ealy seem also to deplore. But I do not see how we can explain and teach these things unless we are willing to investigate, not only what seems settled, but what is good.