David S. Schwartz (University of Wisconsin Law School) has posted Madison's Waiver: Can Constitutional Liquidation be Liquidated? (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Professor William Baude's recent article Constitutional Liquidation outlines a theory of non-judicial precedent, by which indeterminate constitutional meaning can be "liquidated" " clarified and settled – through a "course of deliberate practice" by non-judicial public officials. While offering a promising start, Baude must still address several important questions, omitted from his article, to develop the theory into something viable. What do we make of precedents that don't explain their own constitutional justification? How do reliance interests factor into the theory? Can judicial precedents form part of a liquidation, and are they necessary to clarify constitutional meaning? How binding are liquidations? And why object to liquidations that override prior judicial interpretations of constitutional language that, by stipulation, is indeterminate? It is essential for Baude to identify more and better examples: the national Bank controversy, relied on by Baude, raises more questions about liquidation theory than it answers.