Ilan Wurman, A Debt against the Living: An Introduction to Originalism (Cambridge University Press, 168 pp., $32.50)
Among followers of the federal judiciary, Justice Elena Kagan is known nearly as well for one line of congressional testimony as for anything in her judicial opinions. In her confirmation hearing in 2010, she answered a question about constitutional interpretation by saying, in part, of the Founding Fathers that “we apply what they say, what they meant to do. So in that sense, we are all originalists.”
That would have been a shocking statement from a Democratic president’s nominee just ten years ago, and surprising even from a Republican nominee had it been made a generation earlier. When the late Justice Antonin Scalia wrote A Matter of Interpretation in 1998, his defense of originalism and textualism was still a minority view. Twenty years on, the victory is not complete, but it is clear that the tide has turned toward reading the text of the Constitution as having its original public meaning. The average student of constitutional law knows about originalism and likely understands it to some extent, even if the average law professor does not.
One problem with such a sea change — and it’s a good problem to have — is that it has become hard to explain why originalism was ever not the leading theory on constitutional interpretation. And, once we start to ask that question, others are bound to follow from it. These queries find their answer in Ilan Wurman’s A Debt against the Living: An Introduction to Originalism. As the subtitle suggests, Wurman, an assistant professor at the Sandra Day O’Connor College of Law at Arizona State University, intends his book to do what many law professors will not: explain the roots of originalism and why it represents the best method of interpreting the Constitution.
The idea that words should mean what everyone understands them to mean is so self-evident that it is hard to know where to begin. That is, after all, the way ordinary people interpret everything else they read, from laws to novels to recipes. It is a point so obvious, Wurman notes, that it takes an advanced degree to obscure it — an advanced degree and, less charitable minds might add, a determination to achieve a result that the text of the Constitution would otherwise not permit.
Wurman explains all of this in a brisk 135 pages, and digs deeper into the theory as well. Even beyond the question of how to interpret the Constitution, he asks: Why should we show such respect for it at all? Why does the centuries-old work of dead, white, often slaveholding men bind the citizens of this republic today? It’s not a question most conservatives ponder. Even many progressives would not openly challenge the idea that we should follow the Constitution; in adding new meanings to its words, they claim to be merely interpreting it. But questions like this one are part of what makes Wurman’s book so useful. It is a full, in-depth examination of what it means to have a constitution and what having a constitution demands of us.
Wurman frames his analysis of the question with an exchange of letters between Thomas Jefferson and James Madison. In 1789, Jefferson wrote from France to his friend and neighbor that “the earth belongs . . . to the living,” that “the dead have neither powers nor rights over it.” He goes on to say that “between society and society, or generation and generation, there is no municipal obligation, no umpire but the law of nature. . . . By the law of nature, one generation is to another as one independent nation to another.”
As much as Jefferson is disfavored on the left today, his words here fit with their thinking on the Constitution. They also align with the way ordinary statutes are drafted. One legislature may pass a bill, but it may not stop the next session of the same body from overturning it. Why, he seems to ask, should it be any different with a constitution? As he did many times in years to come, Madison proved to have a keener grasp of things than Jefferson:
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 charge against the living who take the benefit of them. This charge can no otherwise be satisfied than by executing the will of the dead accompanying the improvements.
In collecting and revising his letters later in life, Madison changed “a charge against the living” to “a debt against the living,” which gives us this book’s title. More importantly, the letter gives us an answer that synthesizes ideas of John Locke and Edmund Burke, forming a solution that constitutional conservatives can rely on to expound their worldview.
It is unlikely that Burke directly influenced Madison — Burke’s most famous work, Reflections on the Revolution in France, did not appear until a year after Madison wrote his letter to Jefferson — but it is clear that the two great thinkers’ minds aligned on this point. Governments are not passing things, but the partnership of generations past, present, and future. This continuity through time forms an essential part of the conservative tradition and is counterpoint to the destructive ideas Jefferson was then finding sympathy with in France.
Burke explained the time-spanning nature of government as a partnership meant to endure. “As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Environmentalists and deficit hawks alike frame their argument in terms of our obligation to future generations. Madison and Burke remind us that the past generations have a say, too.
The influence of Locke on Madison’s thinking is more direct. The entire Founding generation was inspired by Locke’s thoughts on government, but Madison’s idea of improvements changing the nature of the earth comes from Locke’s views on property. Locke held that private property was essential to the preservation of mankind’s natural rights. But how does land come to belong to any one person? Through improvement. Locke writes in his Second Treatise of Government that one who, “in obedience to this command of God, subdued, tilled and sowed any part of [the earth] thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.”
Locke’s thoughts on land can be analogized to Madison’s thoughts on law, and the line of reasoning would have been familiar to Jefferson. Improvements to land take it from nature’s commons into private hands. Likewise, improvements to government make constitutions, if not timeless, then certainly more than passing fancies. Property and governments do not disappear with the generation that improved them. They remain, and enrich future generations. With the enrichment from our predecessors’ efforts comes a debt that binds us to the nature of the improvement.
The synthesis of Locke’s ideas on liberty and property with the Burkean theme of continuity among the generations makes Madison’s proto-originalism a natural fit with the theories of modern-day conservatism, showing the obvious benefit of a constitution that abides from one generation to the next. Conservatives know that originalism is the most honest method of interpretation; with this book, they can learn why. Reading the words to mean what they say makes sense, and is also good for the republic.
Even if people agree to that point, they may not be unanimous in agreeing to what for originalists follows naturally: that we should give the words of the Constitution the meaning they were commonly understood to have when enacted. Again, the question is nonsensical to the average person. Of course things should be understood to have their ordinary meanings. If not, communication would be impossible.
“The content of all communication is fixed at the point of its utterance,” Wurman writes, and it is hard to argue with the conclusion. Words change over time, but to give an old word its new meaning, especially when we know better, is to amend the text, not interpret it. Wurman gives the example of the word “deer”: in Middle English, it meant simply “an animal,” while today it refers to a few select species. Likewise, a hundred years ago, a “computer” was a person who performed mathematical functions; today it is universally understood to be a machine. No one who read those words in an old text would insist on the modern meaning.
In this, a constitution is no different from any other writing. Wurman explores various reasons why that is so, but the most convincing is that the Constitution, like all laws, should be read as what it meant when passed, because that was the instant that it received the people’s mandate. Whether through conventions or legislatures, the people consented to every word of the Constitution. The writing is the evidence of the people’s will, expressed through their representatives. Any other meaning lacks that mandate.
Wurman’s work explores these philosophical themes while remaining readable and informative. While many discussions of legal and political theory jump in at midstream to an ongoing conversation among scholars, here the author does the newcomer a service, summarizing all that has come before in the long-running conversation on originalism. To any would-be originalist who feels bewildered by the questions of constitutional legitimacy and interpretation, Wurman provides an indispensable guide.