The arbitrariness of Cass Sunstein's approach to constitutional interpretation weakens his critique of originalism.
Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution. Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach. Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people.
Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective. One issue is the extent to which liquidation should be employed to determine the meaning of the Constitution. Madison believed that it should be employed to the extent that the constitution was not clear. He also believed that the meaning of an unclear provision could only become liquidated through a series of decisions.
Even if one accepts Madison’s view, there are many issues that remain open. How does one define an unclear provision? How many decisions are required to meet the requirement of a series of decisions? Can a liquidated provision be unliquidated if subsequent decisionmakers raise questions about the matter? What type of deliberation is necessary for a decision to count as part of the liquidation process?
These and other issues have been addressed by a new paper on Madison’s views on the subject of liquidation by Will Baude, which like all of Will’s work is first rate. The paper was presented at the most recent Originalism Works in Progress Conference held at the University of San Diego. Interesting commentary on the paper was given by Stanford’s Bernadette Meyler, who favors a common law originalism.
While the underlying paper is not yet available on SSRN, those who are interested in the idea should take a look at this video of Will’s presentation, Bernie’s commentary, and the discussion from the originalist conference. (And while you are there, take a look at the other presentations as well.)