I had the pleasure of listening to Ilan Wurman speak about his book “A Debt Against the Living: An Introduction to Originalism” recently in Houston, Texas. The book offers an engaging, easy-to-understand explanation of Constitutional interpretation, as well as a defense of the ideas of the American Founding. It’s also a compelling essay on why the Constitution is still relevant to this generation of Americans.
Q1: Tell us a little about your book “A Debt Against the Living”.
The book, which is subtitled “An Introduction to Originalism,” is really a short introduction to and defense of both originalism and the Founding. And that’s because, as I explain in the book, I don’t think one can really fully defend originalism, anyway, without also defending the Founding. One has to make the case that the original legal content of the Constitution—of course as it’s been properly amended—is good and just and creates a kind of binding “debt against the living” today. I take that phrase from James Madison’s response to Thomas Jefferson’s famous “dead hand of the past” letter in which Jefferson said that the earth belongs to the living and not to the dead. Madison responded that the improvements made by the dead, like the Constitution, form “a debt against the living”—and that’s where I take my title from.
Q2: How do you define Originalism?
Originalism is the idea that the Constitution should be interpreted with its original meaning. That’s the meaning the words would have had to the Framers who wrote the Constitution and the public that ratified it. More fundamentally I think originalism stands for the proposition that there’s a distinction between what the law is and what the law ought to be; and that we always first ask what does a law actually say or mean or do before asking whether that law still ought to be the law. The same applies to the Constitution. We first ask what it means or says or does; and that requires that we interpret it the way we interpret any communication intended as a public instruction. We use the public meaning, and the original meaning. But then we also have to ask whether the Constitution still ought to be the law—whether it creates this debt against the living.
Q3: How did you come to your views on the Constitution?
It was a long education! I studied political theory and the Founders in my undergraduate studies and continued thinking and reading about them well past law school, too. I think the book that most closely reflects my own views on the Founders and what they tried to accomplish in the Constitution is Martin Diamond’s As Far As Republican Principles Will Admit, which is a collection of his essays.
Q4: How do you defend the ideas of the Founders, the Constitutional order and federalism to millennials?
I think millennials have to keep things in perspective. We young folks in the twenty-first century think we are so much more enlightened than our ancestors were. And of course in some respects we are. But in many respects we aren’t. We have to remember that only last century we had a holocaust in Europe. Only fifty years ago an entire population in the Jim Crow South was subjugated. Americans are not so much more enlightened today than they were two hundred some years ago; and of course to the extent we are more enlightened it’s because we’ve built on the great work of those who came before us.
We have to remember that we don’t celebrate the Founders for being like everyone else always was. They were white and male, of course, and many were slaveowners, but we don’t celebrate them for those things. We don’t celebrate them for being like everyone else always had been. They didn’t invent slavery. On the contrary. They wrote for the first time in a foundational national document that all men are created equal, as a result of which writing half the states abolished slavery between 1776 and 1789, the year the Constitution was adopted. That was a tremendous achievement. And they created the first free government of the modern world—a form of government that continues to redound to our benefit today.
Q5: What common objections do you hear from millennials about originalism and federalism?
I think this ties into my previous answer. They often think the Founders were racist and backward and so on, and of course they were in many respects. But we don’t celebrate them for those reasons. They transcended their historical limitations in important ways, and ways that still redound to our benefit today!
Q6: Charles Cooke recently wrote that Marijuana laws were the path to winning over millennials to the ideas of Federalism. What would James Madison have said about federal marijuana regulations? Is that knowable? Does it matter?
I don’t think it’s quite appropriate to ask what James Madison would have said about that particular issue, after all he and the other Founders probably could not have conceived of the particular policy issues facing us today. What we can ask is what principles did they enshrine in the Constitution? And how do those principles apply today? The first thing I’d say is the Founders certainly had no problem with “morals” legislation. So if they thought marijuana was bad for us morally, they’d have no problem outlawing it. On the other hand, I do think they’d have left these decisions to the states. The federal government only has a power to regulate commerce among the states. To the extent marijuana is grown in-state for personal consumption, I don’t think as originally understood Congress could have regulated this kind of marijuana. But of course we do live in an age of interstate markets. So it’s a hard question, but an interesting one.
I highly recommend Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism”. Wurman is a high-energy speaker. So, if you ever have a chance to see him in person, don’t miss the opportunity.
Doug McCullough, Director
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