James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This Article attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.

Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction”—a real or imputed popular ratification.

While this Article does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

* Professor of Law and Aaron Director Research Scholar, University of Chicago Law School. This Article has been liquidated over time with the help of countless discussions with friends and colleagues, as well as indispensable research assistance from Nickolas Card, Margo Uhrman, Roberto Borgert, Douglas Gates, Kevin Keating, Martin Salvucci, and Natalie Peelish; and research support from the SNR Denton and Alumni Faculty Funds. This Article has benefitted as well from helpful comments by Akhil Amar, Judge Stephanos Bibas, Curt Bradley, Samuel Bray, Jud Campbell, Josh Chafetz, Nathan Chapman, Andrew Coan, Ryan Doerfler, Justin Driver, Richard Epstein, Lee Fennell, Chad Flanders, Jonathan Gienapp, Dick Helmholz, Randy Kozel, Alison LaCroix, Marty Lederman, Saul Levmore, Richard McAdams, Michael McConnell, Bernie Meyler, David Pozen, Saikrishna Prakash, Richard Primus, Richard Re, Stephen Sachs, Lawrence Solum, Lance Sorenson, David Strauss, Kevin Walsh, Garrett West, Adam White, and Christopher Yoo; by workshop participants at Harvard, Stanford, the University of Arizona, the University of Chicago, the University of Pennsylvania, and the University of San Diego’s Originalism Works-in-Progress Conference; and by Liz Klein, Jane Kessner, and other editors of the Stanford Law Review.