Does the Constitution of the United States form a debt against the living generation? Ilan Wurman, Washington D.C. attorney and visiting professor of constitutional law at the Sandra Day O’Connor College of Law at Arizona State University, addressed this question at a forum hosted by the BYU Law student chapter of the Federalist Society. Wurman discussed the merits of originalism, defending the Founding and proposing a framework for assessing the continuing validity of the Constitution as binding law.
“The Constitution should be interpreted as its words were originally understood by the framers who wrote it and the public that ratified it,” Wurman said. Applying this broad definition of originalism, he recognized that just as cooks faithfully following the same recipe might arrive at a variety of apple pies, “it will be the case that faithful interpreters of the Constitution will arrive at a range of plausible answers to constitutional questions.” However, while non-originalists argue that the Constitution is old and outdated, Wurman posits that “we should interpret the Constitution no differently than we interpret a recipe for apple pie written in Philadelphia in the 1700’s—we would use the original meaning that the chef intended.”
Wurman said that the framework for analyzing all law also applies to the Constitution. “We first ask, ‘what does the law say?’ what does it mean? ‘what legal effect does it have in court?’ Only then do we get to the other question which is, ‘should the Constitution still be our law?’ The second question is really the hard one,” Wurman said.
In answering that question, Wurman referenced James Madison who wrote the following in a letter to Thomas Jefferson, dated February 4, 1790:
“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.”1
Wurman said the Constitution is an “improvement of such magnitude and consequence” as to create such a debt because it established a regime that balances self-government and the protection of natural liberties. “It’s no easy task to successfully create a system of government that achieves this balance—the founders did it remarkably well. We have progressed because we stand on the shoulders of their achievement. That achievement continues to create a debt against the living.”
Professor Wurman writes on administrative law, separation of powers, and constitutionalism. He is the author of the book A Debt Against the Living: An Introduction to Originalism (Cambridge 2017).
1 From the revised text of the letter, available at https://founders.archives.gov/documents/Madison/01-13-02-0020 (emphasis in original).