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Sunday, July 22, 2018

Will Baude on Madison's Constitutional Liquidation: A Triumph for Baude, A Failure for Madison?

Will Baude has produced an erudite and thought-provoking piece on “constitutional liquidation” written with his trademark clarity and grace: It is a pleasure to read and a cinch to understand. Here’s the gist of Baude’s paper. In a Federalist Paper, a veto message, and several letters written late in life, Madison famously argued that a series of decisions by Congress, the courts, and the President over a long enough period of time could “liquidate” (meaning clarify) constitutional ambiguities in ways binding on other interpreters after the liquidating decisions. Baude reduces these various statements to an admirably simple three-part theory in which (1) a course of deliberate practice by political leaders interpreting (2) ambiguous or vague constitutional terms (3) results in a settlement of those terms’ meaning accepted not only by the political leaders but also by We the People. In theory, liquidation holds the promise of eliminating the Constitution in Exile — that is, prevailing constitutional interpretations that are stubbornly pressed by purists who think the Powers that Be are getting it wrong. Liquidating decisions deprive those constitutional exiles of their status as legitimate Pretenders, because those decisions represent not just one interpretation among many but the interpretation endorsed by We the People.

There have been other discussions of how political precedents clarify constitutional ambiguities by (among others) Dick Fallon, Brad Clarke and Trevor Morrison, and Shalev Roisman. Baude’s piece, however, is the first of which I am aware that relentlessly focuses on Madison’s idea on liquidation, thereby simultaneously 1) providing CliffNotes for Madison’s later writings and 2) combining departmentalism with with Ackerman’s style of constitutional moments to 3) give us a spare, plain, usable theory of constitutional settlement. It is a hat trick of constitutional history and theory, so clearly laying out the essence of Madison’s theory that we can easily evaluate its strengths and weaknesses, rejecting it if it turns out to be a bust.

After the jump, I will suggest that the theory is indeed a bust. Baude’s exposition, I will argue, shows that truly liquidating decisions in the Madisonian sense are almost impossible to obtain and, therefore, practically useless for permanent constitutional settlement . The weak point is Madison’s effort to enlist popular sovereignty to bless liquidating decisions: Madison’s theory requires We the People to express opinions about constitutional arcana through elections following constitutional precedents set by the political branches. That’s a lot to ask of us voters — too much, in fact. This does not mean that repeated appeals to the People cannot settle constitutional questions for a time — but the time is generally temporary. With rare exceptions, the constitutional Pretenders can always make a bid to return from exile by challenging the existence or scope of some earlier “liquidating” decision.

1. How can the public ever determine the constitutional basis for a collective political decision?

Let’s take the example of the First Bank of the United States as an illustration of the impracticality of liquidation theory for settling constitutional disputes. The constitutionality of the Bank turned on whether a private bank with an exclusive right to hold and lend the federal government’s revenue for twenty years, 80% of the stock of which is owned by private investors, constitute a “necessary and proper” means for the execution of one or more of Congress’s enumerated powers. In 1791, Congress endorsed the idea that such a Bank was indeed necessary and proper, but, in 1811, Congress refused to recharter the Bank. Madison argued in 1816 that, despite that 1811 vote, there had been a long course of congressional decisions upholding the bank’s constitutionality.

How did he know? The problem is that, when Congress debates whether a law satisfies ambiguous constitutional standards like the Necessary and Proper clause, it is very difficult for voters to determine whether their decision is based on legal or policy grounds. For such mushy constitutional standards, the two sorts of grounds can be indistinguishable. Madison himself argued in 1791 that the power to charter the Bank was too “important” to be left to implication, because a monopolistic bank threatened citizens’ equal liberty and Congress’s legislative sovereignty. His argument against the Bank’s constitutionality was, therefore, simultaneously an argument against the bank as bad policy. Members of congress in 1811 likewise freely mixed policy and constitutional reasons that were indistinguishable from each other. (Henry Clay, for instance, rejected the Bank’s legality and wisdom in 1811 but later reversed his constitutional judgment because his policy judgment had changed).

Given how difficult it is to disentangle policy and constitutional grounds when the latter consist of mushy, policy-laden constitutional terms (“necessary and proper,” “reasonable,” “needful,” etc.), it is impossible to say that the public acquiesced in a congressional decision endorsing the Bank’s constitutionality in 1811. The public typically does not pay a lot of attention to the reasons for a legislative decision: Few read floor speeches or tote up votes. Even if a lot of congresspersons explicitly declared that they believed that the Congress had (or lacked) the power to charter a bank, how in the world would the public know?

The impossibility of inferring public acquiescence to a congressional interpretation of the Constitution from a bunch of speeches is nicely illustrated by Baude’s discussion of Representative Madison’s effort to shape the meaning of a congressional vote on subsidies for cod fishermen in 1792. Madison was concerned that the vote could be construed to endorse a congressional power to give bounties for the promotion of fisheries, a matter arguably not within Congress’s jurisdiction. So Madison successfully urged that the vote be characterized as a vote to give the fishermen a rebate on tariffs paid on salt to cure the fish, on the theory that a tariff rebate did not enlarge the spending power of Congress. Baude notes the “irony” that this fine-grained legislative maneuver to shape the reasons behind a legislative decision was lost on Justice Story who later construed the vote as an endorsement of a broad spending power. But there is more than just irony here: if Justice Story could not figure out the true basis for a congressional vote on a tariff rebate, then how are voters to do so? But if voters cannot correctly interpret the reasons underlying a congressional vote, then how can we infer that the public acquiesced in those reasons?

The constitutional meaning of that codfish bounty (or tariff rebate) vote is even more opaque than Baude acknowledges. If Congress has the power to selectively rebate tariffs to subsidize favored activities, then Congress has limitless power to use “tax expenditures” as a substitute for the spending power. This would greatly expand the tariff power, by allowing it to be used not only to raise revenue and protect domestic industry from foreign competition but also to direct subsidies to favored industries at the expense of other domestic producers who have to pay the full tariff. Was Madison endorsing this view of the taxing or commerce-regulating power? That interpretation of Madison’s position seems odd, given Madison’s desire to cabin Congress’ powers — but it is also perfectly consistent with Madison’s speech and vote.

In short, it is extremely difficult for the public to determine whether a congressional decision is based on a view about policy or instead an interpretation of constitutional law. The point is analogous to Shalev Roisman’s point in an excellent 2016 article: The grounds of politicians’ decisions being difficult to infer, one cannot easily infer that those politicians acquiesced to some branch’s action simply by tolerating it. I would add only that the problem of winnowing apart outcome and reasons is exacerbated by Madison’s effort to characterize these decisions as appeals to the People. If lawyers like Joseph Story cannot easily determine the grounds for a congressional decision, then a busy voter will likely find such decisions impossible to decipher. Yet liquidation theory rests on the heroic assumption that ordinary voters somehow have an opinion about such grounds.

2. How can the public tell whether or not allegedly liquidating decisions are limited by their factual context?

Suppose that Congress really did approve of the bank’s constitutionality in 1811 or 1816. Suppose the electorate construed this decision as resolving the Bank’s constitutionality. Suppose that dissenting voters grudgingly acquiesced. (I have read much of the newspaper literature from this period, and all three of these positions strike me as dubious — but let’s pretend). Should those decisions be limited to the factual context of the time? Would new facts allow the liquidating decision to be overturned or limited? If so, liquidating precedents will be as ambiguous as the constitutional text they purport to clarify.

Consider, again, the Bank of the United States. In 1816, the Congress granted the Second Bank a charter, presumably endorsing its constitutionality. In 1819, the United States was hit by a devastating financial panic that revealed substantial corruption and mismanagement at the Second Bank. In 1820, debates about the admission of Missouri lead to a constitutional crisis about Congress’ power to define the status of slavery in territories newly admitted states. In 1822, Charleston authorities purport to uncover a conspiracy by Denmark Vesey to start a slave rebellion, leading to heightened fear about attacks on slavery. By the 1820s, John Randolph, an “Old Whig” from Virginia was warning southerners to reject the National Republicans’ (Monroe’s and later John Quincy Adams’) infrastructure program, because a broadly construed federal power could be used to take away their slaves.

Do these new facts allow a later Congress or President to argue that the Bank really was not necessary and proper after all — that the earlier decision was made under mistaken facts? The answer depends on the scope of those earlier precedents. If the earlier Congress intended to make an abstract decision about the legality of the Congress’ conferring a charter in the Bank come what may, then the change in factual circumstances is irrelevant to the liquidating decision’s “holding.” But perhaps that decision was highly qualified by the facts then known about banks and the federal government.

Baude nicely presents the elusiveness of construing a liquidating decision’s holding, concluding that “the dictum/holding distinction has sometimes proven elusive in judicial precedent and may be more so in liquidation.” That strikes me as a colossal understatement: It is nearly impossible to infer the grounds for a congressional vote when typically only a small percentage of the members give elaborate reasons seems ludicrous. It is hard enough to infer the narrowest grounds for a SCOTUS decision lacking a majority opinion: How is one to infer the narrowest grounds for a decision in which dozens of “judges” vote, most give no reasons, and the reasons given by the few leaders who deliver substantial speeches all differ from each other? By contrast, applying Marks'"narrowest grounds" test to splintered SCOTUS precedents, with only nine voters and a handful of opinions, should be a breeze. Yet the SCOTUS just ducked clarifying Marks: It is hard to believe that they will be equal to task of applying an analogous test to Congress' liquidating decisions.

Here’s an example to illustrate the opacity of political decisions. I give my students a summary of the 1802 debate over the repeal of the Circuit Judges Act and ask them to summarize the “holding” of that decision. It is an impossible task, despite the fact that the debate over the Repeal Act was expressly styled as a decision about Constitutional meaning. The issue was Congress’ power to eliminate judicial offices and thereby de facto deprive a sitting federal judge of his seat during good behavior. The Congress voted to repeal the Circuit Judges Act — but why? Did a majority believe that Congress could “fire” federal judges? Hard to say. Some members like Senator Breckenridge denied that federal courts had any power of judicial review and argued that the “good behavior” clause of Article III did not apply to Congress at all; others, like Representative Varnum, argued merely that eliminating an office entirely was not really the same as removing someone from an office that continued to exist. What was the “holding”? My students never agree, because the members’ speeches varied in their reasons, and no one voted for anyone else’s speech.

3. Are We the People allowed to change our mind and overrule our own liquidating decisions?

One of the best parts of Baude’s article is his discussion of whether a liquidating settlement is permanent - -whether, in his words, liquidation can be liquidated. His analysis is balanced and subtle, and the best evidence of his fair-mindedness is that, in the end, Baude punts. He concludes that it is uncertain whether mere normative disagreement with a prior liquidating decision should be sufficient reason to overturn them but that nonetheless such decisions do seem to get overturned on such a basis.

I take this inconclusiveness to be baked into Madison’s liquidation theory. The problem is that a normative theory cannot answer a problem of positive prediction. We need to know the circumstances in which a prior decision will actually be stable, not when decisions ought not to be questioned because somehow Pure Ideal of the People signed on to it. If stability is what we value, then we should identify those conditions under which a decision will actually stick. Those conditions give us a much sounder sense of what it means for We the People to bind ourselves than a lot of high-flown rhetoric about voters’ somehow endorsing stuff that they most likely ignore. Daryl Levinson and Ben Sachs have written a great summary of the practical methods by which policies actually become entrenched against change. Some of these methods involve changing the people’s baseline of expectation about what government should do. (Think of how Social Security Old Age insurance, for instance, is regarded as something akin to a an untouchable contract by voters). Madison’s theory does not attempt any such positive identification of the circumstances that lead to true entrenchment. It therefore seems to me more like constitutional hand-wringing, hectoring us that certain things should happen even when they self-evidently do not happen without offering any reasons to bridge the gap between “should” and “will.”

An example will illustrate my frustration with this sort of moralistic style of constitutional theory. In 1850, Congress enacted a set of laws self-consciously designed to address the South’s complaint that the North was disobeying the Fugitive Slave clause of Article IV, section 3, while simultaneously addressing the North’s worry about Southern slave-catchers’ kidnapping free black citizens in violation of the Fifth Amendment’s Due Process clause. This “Compromise of 1850” had all the trappings of a liquidating settlement to determine the meaning of Article IV and Due Process. It was highly visible. Clay, Webster, and Calhoun, all lions of the Senate, were the leading actors. Both Parties, Whig and Democrat, signed on, and most of the public seemed quite relieved immediately in the wake of the decision. For a moment, at least, an ambiguity in the Northern citizens’ duties to return fugitive slave seemed to have been liquidated.

So why did this decision not stick? Why did not the public feel itself bound by it? Some did: After all, they signed on to it, at least according to Madison’s theory. But some joined a new political party that rejected the “precedent.” Why?

The answer, of course, is that Northern citizens changed their minds. They became frustrated by the operation of federal slave-catching commissioners and increasingly mobbed slave-catchers who tried to use them. The public, in short, thought that they had a right to overrule their own precedents. On Madison’s account, these citizen reneged on a decision that established the meaning of ambiguous provisions in Article IV. But if We the People actually do not think that the decision is binding — if we think that we can overrule our old decisions because we changed our minds — then what is the sense of saying that we defied our own popular will? Why not instead say that Madison’s theory of how We the People make Our decisions stick is simply mistaken? Theories of “popular stare decisis” surely ought to reflect how real people act, just as judicial stare decisis should reflect how courts behave. But Madison’s theory is more wishful thinking than positive prediction.

4. If apparently liquidating decisions rarely liquidate constitutional ambiguity, then why did Madison write all of those letters in the 1830s?

Here’s a hypothesis about Madison’s motivation in pressing his liquidation theory in his last years. He was an aging Framer who saw his life’s work — a Constitution that would last for ages — crumbling away, eroded by increasingly polarized debates over slavery. To stop the erosion, Madison needed some constitutional compromises —say, the Missouri Compromise — to stick. He needed the educated public to stand by congressional decisions that they did not like on the grounds that those decisions resulted in settlement that everyone had a voice in making. The idea that those decisions “liquidated” constitutional ambiguity served this end. Madison could oppose purists on both sides — Southern purists like Calhoun, Northern purists like John Quincy Adams — with talk of the legally obliging force of liquidating decisions. The problem with the theory, however, is that no one really felt legally obliged: The theory was devoid of predictive power. In the end, Madison the hard-headed political scientist of Federalist #51 had become Madison the finger-wagging scold.

None of these weaknesses in Madison’s theory reflects badly on Baude’s exposition of it. In fact, as I noted above, the mark of Baude’s excellence as an expositor is that the weaknesses in the theory can easily be seen, like cracks in a crystal-clean windshield. It is a great paper that brilliantly reconstructs a theory of constitutional settlement. It is no one’s fault but Madison’s that such a theory does not really reflect how We the People settle anything.

Posted by Rick Hills on July 22, 2018 at 01:49 PM | Permalink


Interesting . The respectable author of the post , claims :

Do these new facts allow a later Congress or President to argue that the Bank really was not necessary and proper after all — that the earlier decision was made under mistaken facts? The answer depends on the scope of those earlier precedents. If the earlier Congress intended to make an abstract decision about the legality of the Congress’ conferring a charter in the Bank come what may, then the change in factual circumstances is irrelevant to the liquidating decision’s “holding.” But perhaps that decision was highly qualified by the facts then known about banks and the federal government.

End of quotation :

But the heart of the issue , relies on that language " abstract decision " that could be indeed further elaborated . For, the very definition or traits of the law as such, are indeed : The general standard and the abstract it bears . When a law , is abstract and offers general standard , less importance should be attributed to the underlying facts .As such, the law , can better stand social or economic or technological shifting and hold . And indeed , the author it seems , relies more on historical occurrences over modern institutions of modern state . For in time , jurisprudence is built up , and more and more stability and coherency reign . While , in early formation of a state and its institutions , more ad hoc and transitional views or laws are formed . In time , more stability and coherency is gained. Moreover :

That is why , courts and judges exist ( among others ) . For interpreting the law , and adjusting it , synchronize it with current modern developments . In this regard , judges , are indeed , sub legislators , and sometimes even , supreme legislators .

Very recommended , just to read , the dissenting opinion of justice Roberts in patchak Vs. zinke , and understand (partly at least , it is complicated ) the need for general standard while legislating , here :



Posted by: El roam | Jul 22, 2018 4:43:52 PM

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