In recent years, constitutional scholars have engaged in dialogue over the validity of looking to historical and social practice to determine what the Constitution means. Part of this debate has focused on the idea of “liquidation,” suggested by James Madison in Federalist 37 and other writings as a means by which the text of the Constitution might take on additional meaning after the ink had dried. Constitutional decisionmakers, both on the Supreme Court and in the executive branch, have found recent occasion to consider the importance of past practice when deciding what our founding document means now.
This Note clarifies the idea of liquidation and explores what it might offer us as an interpretive tool. To do so, it sets up two lines of inquiry, one historical and the other theoretical. Ultimately, I hope to demonstrate that Madison’s idea of liquidation, revealed through historical evidence, is conceptually quite similar to the way twentieth-century linguistic philosopher Ludwig Wittgenstein suggests that language—be it constitutional text or modern speech—acquires meaning. Wittgenstein’s suggestion that meaning comes from use illuminates and fills in a theoretical structure behind what Madison meant when writing about liquidation.
By using the tools of history and philosophy, this Note combines two interpretive modalities in service of strengthening the legitimacy of scholarly and judicial recognition of the robust role that practice plays in our decisions about what the Constitution means. Examining the Madisonian concept of liquidation through Wittgenstein’s ideas about language provides useful reinforcement to the idea that what we do “can inform our determination of ‘what the law is.’”
Paul G. Ream, Liquidation of Constitutional Meaning Through Use, 66 Duke L.J. 1645 (2017)
Available at: http://scholarship.law.duke.edu/dlj/vol66/iss7/5