by Jack Rakove
Abstract
Liquidation is a blazing buzzword of constitutional scholarship. William Baude’s provocative essay on “Constitutional Liquidation,” published five years ago, is the best treatment of the subject. Madison clearly possessed a concept of liquidation, but its brief mention in Federalist 37 hardly indicates that the subject deeply engaged his interest. It mattered not for its own sake or importance, but simply as one more example of the broader question this fascinating epistemological reflection on the difficulties of constitution-making was pursuing. In 1788, then, Madison was not thinking concretely about modes of constitutional interpretation. Nor should we regard this as a matter of great surprise, given that constitutional law was a realm of practice the Founding generation was just inventing, not a subject they could yet engage substantively.