Madison’s Waiver

Professor William Baude’s recent article Constitutional Liquidation outlines such a theory, by which indeterminate constitutional meaning can be “liquidated”—clarified and settled—through a “course of deliberate practice” by non-judicial public officials. Baude’s article makes a good start but leaves certain critical questions unaddressed. If Baude develops his theory further, he will have to analyze numerous examples of non-judicial precedent to define the contours and limits of liquidation.