A Debt Against the Living: An Introduction to Originalism

by Ilan Wurman

Thomas Jefferson famously wrote that the earth belongs to the living. His letter to James Madison is often quoted for the proposition that we should not be bound to the 'dead hand of the past', suggesting that the Constitution should instead be interpreted as a living, breathing document. Less well-known is Madison's response, in which he said the improvements made by the dead - including the US Constitution - form a debt against the living, who benefit from them. In this illuminating book, Ilan Wurman introduces Madison's concept of originalism to a new generation and shows how it has shaped the US Supreme Court in ways that are expected to continue following the death of Justice Antonin Scalia, one of the theory's leading proponents. It should be read by anyone seeking a better understanding of originalism and its ongoing influence on the constitutional jurisprudence of the Supreme Court.

Genres: Law, Politics, Nonfiction, History, Legal, Philosophy, American History

172 pages, Paperback

Published October 5, 2017

Reviews

[Adam S. Rust · Rating 2 out of 5]

An excerpt from my full review, which can be found at the online magazine Liberal Currents:

"Originalism holds itself out to be the only correct method for interpreting the Constitution. Without it, judges will lack any restraint on their interpretation of the law, substituting the judgment of their personal preferences for the judgement of the people. Only by carefully tending to the original meaning of the particular Constitutional text can we hope to restrain judicial activism like in the bad old days of the anti-regulatory frenzy of the Supreme Court’s Lochner Era during the early 1900s, or the freewheeling rights-granting days of the Warren Court of the 1960s.

The problem is that Wurman fails to provide a coherent explanation of how we determine the “intent” of the Constitution that addresses criticisms he himself acknowledges are valid. Even assuming such an “intent” could be determined, Wurman also provides two completely different methods for applying the textual intent to specific cases, an issue he admits is an “unresolved question.” Given that the application of an interpretation of the law to specific factual questions is a central part of a judge’s job, the fact that this question remains “unresolved” is fatal if Originalism’s goal is to guide and restrain judges.

The rare portion of the book that provides something approaching a specific plan for judicial action is the section discussing what Originalism would declare unconstitutional, which is: effectively all the New Deal legislation related to worker and consumer rights and some of the rights of criminal defendants as interpreted by the Warren Court. The fact that this is one of the few points in the book where Wurman descends from the abstract into the concrete lends credence to the criticism that Originalism is less a principled method for restraining the judiciary and more of a method for churning out specific conservative judicial outcomes."

[Nathan · Rating 4 out of 5]

3.5

[Dallin · Rating 5 out of 5]

Short, informative, clear, did I mention it was short? More books like this, please.

[Karl Worsham · Rating 4 out of 5]

This is a solid primer on originalism. My one critique is that Mr. Wurman does not make a clear distinction between two separate inquires: what the Constitution actually says and whether the Constitution is legitimate. Part of the problem is that it seems that Mr. Wurman believes that what the Constitution says, its substantive claims, determines its legitimacy.

In a democratic republic where process determines legitimacy, this has to be wrong. Further, originalism, by its own lights, is not a tool to arrive at preferred outcomes or the ideal policy (not matter how it has been abused). It merely claims to help judges determine what the law says, for good or for ill. In short, originalism is descriptive not normative.

That being said, I do think the distinction is clarified near the end of the book. It becomes clear that these are two distinct inquiries, thereby allowing the reader to agree with the claims of originalism without agreeing with Mr. Wurman's apparent claim that the Constitution should be interpreted consistent with its original public meaning only if "it creates a just regime worth of our obedience."

[Jonathan · Rating 2 out of 5]

While certainly learned, Wurman’s slavish devotion to the Framers as more correct than anyone ever before or since, his argument against non-originalists as apparent dullards who don’t know how to understand language, and most of all his refusal to engage with the intentional damage to the Constitution and its implementation done by those claiming to be originalists, makes this book hard to listen to at best. My list of complaints is longer but I can’t even devote any more time to this project. I have to reread a few other books including:
Leah Litman’s “Lawless”
Kermit Roosevelt’s “The Nation that Never Was”
and
Madiba Dennie’s “The Originalist Trap”
to begin to recover equanimity.

[Lance Cahill · Rating 5 out of 5]

A very good introduction to originalism - interpreting legal text with reference to the original public meaning at the time of enactment. Author covers basics of why this should be a preferable method even with indeterminacy and discusses other popular methods of interpretation and variants of originalism. Additionally, author discusses why originalism results in a legitimate state of affairs. Well written and accessible.

[maxyeote · Rating 3 out of 5]

Read on one of the associates' recommendation (borrowed his copy too). Simple and easy to understand - perhaps deceptively so. I suspect that Wurman's approach to originalism is suspicious at some points: his analysis often oversimplifies quite complex theories and his overall understanding of originalism seems a tad too commonsensical which I think loses something of what originalism actually stands for.

[Curtis · Rating 5 out of 5]

This book is a wonderful primer on the concept of Constitutional Originalism, comparing it to most major interpretive approaches to the constitution. Wurman makes a convincing argument for original public meaning approach to the constitution (and document, for that matter). I highly recommend this book.

[TOMMY · Rating 3 out of 5]

Interesting argument for using originalism to interpret the Constitution. Completely wrong, misguided, and out of touch with the basic tentants of our most sacred document, but interesting nonetheless.

[Michael Breth · Rating 5 out of 5]

Wonderful explanation of why, as a country, we must return to the basic truths this country was founded on.

[Mike Joyce · Rating 5 out of 5]

A great primer on originalism

[Brian · Rating 5 out of 5]

Lucid. Whether you agree or disagree with the arguments or conclusions, anyone who wants a true understanding of Originalism should read this concise book.

[Justin · Rating 4 out of 5]

A slog - but a good window into the topic of what it means to have a constitution, and a good one at that.

[Paul Sand · Rating 4 out of 5]

[Imported automatically from my blog. Some formatting there may not have translated here.]

A short but very readable book by Ilan Wurman. Like me, a physics major who went on to less complex work.

On legal topics, I wear the "dilettante" label, not proudly, but honestly. I've found myself in the too-deep end of the pool while reading in this area before. I'm happy to report this is a Goldilocks book: "just right" for my level of understanding and background.

The title refers to James Madison's rejoinder to Thomas Jefferson's suggestion that the country should invent itself a new system of governance every generation, lest it be enslaved to the "dead hand of the past." Madison rebutted:

If the earth be the gift of nature to the living, their title can extend to the earth in its natural State only. The improvements made by the dead form a debt against the living who take the benefit of them. This debt cannot be otherwise discharged than by a proportionate obedience to the will of the Authors of the improvements.

[Bold emphasis added. Madison was bold-impaired.]

Wurman makes the case, with Madison, against those who prefer the Constitution to be treated as a "living, breathing document." To quote Jonah Goldberg: we "like our Constitution like our beef jerky — cold, dead, tough to chew through."

That's cute, maybe a little too cute for a serious scholar like Wurman. He carefully teases apart the various issues involved in originalism, best stated as the belief that the Constitution's words and phrases should be interpreted according to their original public meaning. He argues that this should be no different from "interpreting" an 18th century recipe for fried chicken: if the recipe stipulates "pepper to taste", it means (a) you've got considerable leeway as to the amount of pepper you put in; (b) it would be an unconscionable error to say "well, let's just use rosemary, instead"; (c) if, in the 18th century, "pepper" meant something other than what we mean today, then you should go with that "original" meaning.

[More on early American pepper here.]

Wurman argues against a number of people, including (most important to me) Randy Barnett and Richard Epstein, who have contended that Constitutional interpretation should proceed from a "presumption of liberty". But also against folks who argue that legislative and executive laws be given the "presumption of constitutionality."

He also approaches the issue of the Constitution's legitimacy; which, on its face, seems problematic for a document whose "We the people" preamble refers to no actual people living today. He makes (at least to my ears) a unique argument about how the Constitution is rooted from the Declaration of Independence three different ways: (1) the easy one, it enshrines the inalienable natural rights of individuals; but also (2) it establishes a democratic order of government, undoing the wrongs of George III; and (3) it was ratified by methods of popular sovereignity, another source of George III gripes.

Wurman is especially good at presenting his opponents' arguments fairly, with understanding and respect. (One measure of this: a couple glowing blurbs on the back are from scholars he takes serious issues with.)

[G BA · Rating 4 out of 5]

Clear and convincing case for originalism

[Ty Turley Trejo · Rating 4 out of 5]

Wonderful, *original* exposition in originalism. Ilan is one of the great, young and new legal scholars. This is worth the quick read if you want a modern perspective on originalism. Especially if you’re skeptical of it. He treats all the counter arguments with depth, yet brevity—the gestalt of the whole book. I disagreed with him on a few points of his interpretation of originalism, but his writing made me think. And I always love that.

[UChicagoLaw]

This new book by a young lawyer provides an accessible, fun, and yet sophisticated introduction to originalism. The title comes from an exchange between James Madison and Thomas Jefferson about binding future generations to the Constitution. Jefferson protested that the earth belongs to the living and that we should not be ruled by the "dead hand" of the past. Madison responded that the improvements made by the dead, such as the Constitution, form "a debt against the living." Wurman argues that we are all still in the Constitution's debt. —William Baude