Constitutional Liquidation and Original Meaning Originalism

The dictionary defines the verb "to liquidate" as :"to determine by agreement or by litigation the precise amount of (indebtedness, damages, or accounts)"  Notice in these early cases how the Marshall Court looks to early practice as powerful evidence of the original meaning of an indeterminate text. Here is how Prof. William Baude explains this method of "liquidating" a constitutional text: 

 

"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....Liquidation was a specific way of looking at post-Founding practice to settle constitutional disputes, and it can be used today to make historical practice in constitutional law less slippery, less capacious, and more precise."

For examples of this, see the discussion of early practice in McCulloch (power of Congress to incorporate a national bank) at p. 123 and in Gibbons (does commerce include navigation) at p. 137.

Although nowhere is Congress given the power to incorporate a national bank, it is given power to lay and collect taxes, to borrow money, to regulate foreign and interstate commerce, and to raise and support armies and navies. Do these powers imply a power to create a national bank? See page 123.