Things to Read This Week (11/17)
HLR, liquidation, and much more
The Harvard Law Review Supreme Court Issue is out, including pieces featured here before by Richard Re and by Jack Goldsmith, and many other interesting things. This, along with the Michigan Law Review Book Review issue (and the Supreme Court Review, of course), is one of the rare law review issues I generally read in its entirety.
Also, on the Harvard Law Review Blog, Zachary S. Price, Making Sense of the Emergency Appropriations Decisions and Henry Ishtani, State Enforcement of Section Three Disqualification: What McConnell Gets Right on Trump v. Anderson and Why He’s Still Wrong.
Meanwhile, just published in the Notre Dame Law Review, Kleinfeld & Sachs, Give Parents the Vote, plus responses from Stephanopoulos and from Fishkin and a reply by Kleinfeld & Sachs.
I also just found this one from Cynthia Nicoletti, Reconstructing The Meaning of “Forty Acres and a Mule,” which is “part of a larger book project on the first tentative steps toward land redistribution during the Civil War and on the subsequent halting and unraveling of these measures in the war’s aftermath.” If you know how I feel about Nicoletti’s first book, you know I’ll be eagerly waiting for this one to take shape too.
Last week a reader pointed out Shugerman and Lawson, Presidential Removal as Article I, not Article II — laudable for its focus on the Necessary and Proper Clause, which gets too little play in these debates, and remarkable for its combination of coauthors. Not sure I agree, but good for them!
Finally, one from me. In 2019, I published an article on “Constitutional Liquidation,” expanding James Madison’s account for the settlement of constitutional meaning through practice. For years, what I really wanted to know was what does Jack Rakove think? since he literally wrote he book on James Madison’s account of constitutional interpretation. In the latest issue of the Journal of American Constitutional History, we finally find out, with Jack’s article Madisonian Liquidation Unliquidated, followed by my reply, Liquidation, Then and Now.
From my introduction:
I’m flattered that my work on James Madison’s conception of liquidation1has attracted the attention of Jack Rakove—Madison’s self-proclaimed “latter-day scholarly alter ego”—especially since the topic is one “which working historians regard as being at best only mildly interesting.”
As I understand Rakove, he has doubts about my attempt to claim Madison’s intellectual handiwork as a tool of today’s constitutional law. This is not because he purports to disagree with me about constitutional law, over which he disclaims jurisdiction (though his many sharp asides on the topic make me wonder if that disclaimer is partly false modesty). Rather, he doubts that liquidation was really an important or developed part of Madison’s thought. And to the extent it was, he doubts that Madison conceived it in the “legalistic” framework I describe.
In the extreme, one might read Rakove as saying that if constitutional lawyers want to make up stories about Founding-era concepts for purposes of today’s Supreme Court litigation, that’s fine—so long as we keep our grubby mitts off of the clean and honest work of the historians. This sort of division of labor has become a trope in recent discourse among historians and originalist constitutional law scholars, who increasingly emphasize the distinct ways in which the disciplines of history and law frame constitutional research questions. (I confess that I may be guilty of contributing to this trope.)
I am tempted to accept Rakove’s proposed division of labor and let things lie, not least because I am as modest about my expertise in early American history as he is in his expertise about modern constitutional doctrine. But I am not going to do that. For in my view the distinction between history and constitutional law has if anything become overstated. While constitutional law has its own reasons for engaging with history and its own rules for determining which historical facts matter, constitutional law scholarship should still try to get its historical claims right.
So after I first reintroduce the concept of liquidation, let me explain why I think liquidation was a coherent part of Madison’s thinking about the Constitution, even if Rakove is right that it may not have been the most important part, especially in 1787. I’ll then explain how that affects our use of it today in modern constitutional law.
