Podcasts Government Unprecedential Precedents and the search for constitutional meaning

Precedents and the search for constitutional meaning

Published: May 22, 2020, 1 a.m.


\nIn Federalist 37, James Madison conceded that even the best lawmakers cannot write perfectly clear laws. \u201cAll written laws,\u201d whether the Constitution or in statutes, \u201care considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications\u201d. These discussions happen not just in courts but in the course of actual administration.\xa0
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\nSo, when a law\u2019s original meaning is not clear, its ambiguities can be resolved \u2014 \u201cliquidated\u201d \u2014 by the people themselves, through the settlement of precedents set by judges and statesmen alike. To discuss this underappreciated part of republican self-government, and its relation to more familiar notions of judicial\xa0stare decisis, Adam welcomes William Baude of the University of Chicago, author of two recent articles on these subjects.
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\nAdditional Resources: – Precedent and Discretion – Constitutional Liquidation