by William Baude
Abstract
The deliberate acts of different parts of our government have created various non-judicial precedents. Those precedents had force under historical theories of liquidation. Today’s jurists and scholars have reasons for looking to what has historically been understood as liquidated. Maybe they think it is part of the law of constitutional interpretation—still our law, unless it is lawfully changed. Maybe it is evidence of how constitutional ambiguities and constitutional practice related in the past. Or maybe they simply think we have something to learn from those who confronted interpretive challenges analogous to our own. In using Founding-era liquidation for these purposes, it is important to understand how liquidation really operated. But if we learn that Madison had other important concerns in his life beyond liquidation that need not give us pause.