I confess that this year felt like it got away from me, but looking back I am surprised to discover that I published four articles in 2019.
Two of them were pieces on originalist theory co-authored with Steve Sachs: Grounding Originalism, in the Originalism 3.0 edition of the Northwestern Law Review, and Originalism and the Law of the Past in the special originalism issue of the peer-reviewed Law and History Review.
I also published two solo-authored pieces. I recently blogged about the most recent one, The Unconstitutionality of Hugo Black (Texas Law Review).
The other, which I published at the start of the year was an article in the Stanford Law Review called Constitutional Liquidation. Liquidation is something I’ve been working on since I before I officially became a law professor — it’s an attempt to reconstruct a profound aspect of James Madison’s theory of constitutional law, as well as to provide a theory of constitutional precedent: that the practice of the government (not necessarily the courts) can “liquidate” the meaning of ambiguous parts of the Constitution when it is sufficiently deliberate, widespread, and settled. Here’s the abstract:
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.
Besides these articles, I also finally published a short chapter, The Court or the Constitution? in a festschrift for the great Professor Larry Alexander. It’s a short piece, but I’m especially proud of the fact that the chapter merited this comment in James Allan’s review of the festschrift:
As for Baude, let me just say that it is very seldom indeed that I read someone get the better of an argument with Larry Alexander. In my view Baude does just that in his chapter, even after considering Alexander’s reply. Both are a treat, but Baude’s claim that Alexander cannot have both the cake of judicial supremacy while also eating the truth of originalism, convinced me, and I recommend the exchange to all readers.
Finally, I also co-authored two amicus briefs to the Supreme Court, arguing that they should grant certiorari to decide whether to reconsider the doctrine of qualified immunity. (Something I published an article about last year.) One, in a case called Doe v. Woodard, was denied this summer. The other, in a case called Baxter v. Bracey, has been repeatedly rescheduled and is still waiting for the Court to decide whether to grant it.