Part 2 of 2
Up until now, my analysis has been descriptive and analytic--an attempt to discover what liquidation is (or was). But liquidation is more than a historical curio. It also serves several deep constitutional values that may give it continuing relevance and allure today. As noted above, liquidation might turn out to be of importance to those who subscribe to various "originalist" methods of constitutional interpretation. But it is not, and need not be, just that. It also can be used to support and implement such broader constitutional norms as departmentalism, precedent, and tradition.
Our Constitution's text, structure, and lived tradition all point to an important fact: Constitutional interpretation is a shared activity, not the monopoly of the federal courts. That is evident in the particular responsibilities that the Constitution imposes on each branch, (215) as well as in the broader principles of coordinacy and separation of powers that the document embodies. (216) At least as importantly, it is evident in our constitutional tradition, in which elected officials have frequently been sources of constitutional argument and forces for constitutional fidelity--and also for change. (217)
Liquidation provides a source of constitutional law that accommodates and encourages that departmentalism. Liquidation is shared among the branches, rather than being monopolized by the judiciary. (218) Indeed, as discussed above, Madison argued that the departmentalist nature of liquidation was key to its legitimacy: Each branch had reasons to seek popular approval of its views and hence to demonstrate the reasonableness of its interpretation to the public. (219) This "public sanction" (220) gave liquidation a sort of quasiconstitutional status. Popular ratification, of course, was responsible for the authority of the Constitution itself, and only a similar process could alter or abolish it. But an indirect public sanction still gave liquidated decisions enough connection to the basis of constitutional legitimacy that it had a subconstitutional legal status--one that was powerful enough to override individual judgments of government officials in indeterminate cases. (221)
At the same time, liquidation also tames one of the most cited risks of departmentalism, namely the risk of unceasing chaos and disorder. (222) Liquidation supplies a relatively specific doctrinal structure by which interbranch constitutional disputes can be judged and ultimately settled. It lets us get somewhere and move on. (223) And yet it does so in a way that is true to the core values of departmentalism, by avoiding the unilateral imposition of constitutional values by one branch upon the others.
Another widely shared constitutional value is that of judicial precedent. Indeed, entire theories of constitutional interpretation have been built around precedent, and even most originalists have grown to accommodate it. (224) Liquidation has a close relationship to the idea of judicial precedent, and it may therefore be able to find just as ready a place in constitutional law. Indeed, for departmentalists, liquidation could even go so far as to replace our current judge-centered doctrine of stare decisis.
Because the relationship between liquidation to precedent has changed over time, it helps to first consider liquidation's relationship to precedent at the Founding, and then consider its relationship to modern principles of stare decisis.
Madison repeatedly analogized liquidation and precedent; one might even go so far as to say that liquidation simply was a form of precedent. (225) For instance, on several occasions Madison referred to liquidation as "legislative precedents." (226) The question, Madison wrote to Charles Ingersoll, was "how far legislative precedents expounding the Constitution, ought to guide succeeding legislatures, and to overrule individual opinions." (227) And the answer, wrote Madison, "has its true Analogy in the obligation, arising from Judicial expositions of the law on succeeding Judges; the Constitution being a law to the Legislator, as the law is a rule of decision to the Judge." (228)
Madison went on to argue that judicial precedents had "authoritative force" because they allowed the law to "be certain and Known" and because if they were "publicly made, and repeatedly confirmed," they were likely to have the sanction of the public. (229) By analogy, he said elsewhere, "Legislative precedents" were "entitled to little respect" when they were "without full examination & deliberation." (230)
The analogy had extra force at the Founding because the doctrine of judicial precedent was different than it is today. It generally required a line of cases, not just the dictate of a single case. John McGinnis and Michael Rappaport have examined "the English legal system" as well as "the American experience, first in the colonies, then in the independent states and during the ratification debates, and finally in the Supreme Court under the new Constitution" and concluded that "[i]n all of these periods ... precedent rules conferred greater weight on a series of decisions than on a single decision," though the exact details varied. (231)
According to another account, in England "the strict doctrine of stare decisis ... under which the holding of a particular case is treated as binding ... was a product of the nineteenth-century mind." (232) By contrast, "the doctrine of precedent" that existed before that "was more closely related to the concept of mos judiciorum, judicial custom; it was a line of cases, rather than a single decision, that ought not to be overturned in the absence of very weighty reasons." (233) Another study, this one of early American cases, suggests that "up to the year 1800," the older precedent model controlled, and the modern doctrine of stare decisis "solidified" by 1850. (234) Whatever the exact historical details, the importance in the Founding era of a line of multiple cases suggests how natural it was for Madison to equate liquidation to the doctrine of judicial precedent.
As these accounts also show, the doctrine of precedent changed over the course of the nineteenth century to become closer to the stare decisis model we know today. And while the exact time and place of the transition is debated, the older vision of precedent remained important in constitutional law for some time after the Founding, as demonstrated by Abraham Lincoln.
In Lincoln's first major speech on the force of the Supreme Court's decision in Dred Scott v. Sandford, (235) he discussed precedent in terms resembling the model of liquidation. In that speech, Lincoln stressed the distinction between two functions of judicial decisions--their judgments in particular cases, which "absolutely determine the case decided," and their prospective status as "'precedents' and 'authorities.'" (236) Lincoln did not deny that Supreme Court decisions had precedential force "when fully settled." (237) But, he said, "[j]udicial decisions are of greater or less authority as precedents, according to circumstances." (238) To wit:
If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country. (239) Lincoln's criteria for settled precedent contain several similarities to those for liquidation. The search for "steady practice of the departments," or else one having "been affirmed and re-affirmed through a course of years," resembles liquidation's requirement of a course of deliberate practice. The search for unanimity and a lack of partisanship mirror some of the elements of constitutional settlement or acquiescence. This suggests that the potential analogy between liquidation and judicial precedent persisted in some high quarters even in the second half of the nineteenth century.
Modern stare decisis
By contrast to the gradualism of the Founding era, under the modern doctrine of stare decisis, judicial precedent is generally thought to settle controversies in one go. (240) When parties argue a case before the Supreme Court today, even a single old case will be taken very seriously. Think of the effort the Justices spent parsing and distinguishing United States v. Miller (241) when interpreting the Second Amendment in District of Columbia v. Heller, (242) or the focus the Court gave to Kentucky v. Dennison (243) when it reconsidered the case 126 years later in Puerto Rico v. Branstad. (244)
Even more emphatically, lower courts are not today supposed to say something along the lines of, "Well, I know that the Supreme Court just ruled the Voting Rights Act (245) (or a flag burning statute (246) or the U.S. Sentencing Guidelines (247)) unconstitutional, but I'm going to keep enforcing it for a while and see if the decision sticks." And the apparent exceptions--such as Judge Silberman announcing that he would effectively nullify Boumediene v. Bush unless the Supreme Court made him stop, (248) or lower courts seeming to resist the Supreme Court's decision in Heller (249)--are sufficiently rare and controversial to prove the point. (250) Whatever the reality, the modern ideal of judicial precedent is based on...