•  
  •  
 

Abstract

In Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court adopted a new standard for interpreting the Fourteenth Amendment. This standard, which this Article refers to as maximum-specificity public meaning analysis, seeks to determine original public meaning at a very concrete level of specificity based on the laws in effect on the date of the Amendment’s ratification. As Justice Barrett observed in her concurrence in Bruen, however, that approach will give rise to many difficult questions. James Madison’s concept of liquidation may provide a useful though limited supplement in this situation. It can help avoid some of the problems that maximum-specificity public meaning analysis will inevitably produce through its insistence on returning to outdated social conventions and ignoring constitutional principles that were developed after the Fourteenth Amendment’s adoption but are fundamental to constitutional law today. This Article undertakes a preliminary exploration of what difference it might make to apply liquidation principles to the Fourteenth Amendment. This proposed approach bypasses the ongoing wars between various camps of constitutional interpretivists to identify an area of partial agreement that can allow Fourteenth Amendment jurisprudence to develop without a wrenching return to nineteenth-century mores. Specifically, liquidation analysis applies to the interpretation and application of ambiguous constitutional provisions, especially ones that were novel or not well understood at the time of their adoption. Some key aspects of the Fourteenth Amendment that are irrefutably ambiguous in this sense include: (1) what rights the Fourteenth Amendment protects; (2) to what groups its protections extend; (3) what work the respective clauses in Section One of the Amendment do; and (4) to what degree Section Five alters the federalism balance of the original Constitution. This Article concludes that liquidation cannot help resolve the contemporary disputes about the latter two questions about the Fourteenth Amendment’s meaning because those two aspects still have not been liquidated. As to the first two questions, however, liquidation can be helpfully applied, producing interpretations that reduce the discord between maximum-specificity originalism and contemporary constitutional law principles.

Download

Share

COinS