The most recent entry in the “originalism is our law” sweepstakes is Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism.” [Ed.: see also here for a podcast discussion of the book.] This 135-page book is an excellent “introduction” to many difficult questions pertaining to constitutional interpretation. However, as is the case with so much scholarship these days, its conclusions are “originalist” only if originalism and pluralistic theories of constitutional interpretation, including what the author refers to as “living constitutionalism,” are one and the same.
The book tackles two important questions: how should we read the Constitution, and is the Constitution worth keeping today. The author has a wonderful Hemmingwayish turn of phrase which makes the style of the book accessible to any reader interested in constitutional interpretation. Law students would benefit from reading the book (provided they are well-supervised, see below).
Wurman argues that we first need to understand what the Constitution says before we can decide whether to keep it. I’m willing to go with that chronology as a logical matter, but this review tackles the second question first.
Wurman describes three major theories of constitutional legitimacy: the “libertarian school,” the “progressive-originalist school,” and the conservative school.” (p.47). Libertarians argue that the Constitution “must protect natural rights.” Progressive-Originalists believe that the Constitution “must allow for responsiveness to contemporary politics.” Conservatives believe that legitimacy “is rooted in an act of popular sovereignty when the people ratified the Constitution in 1789.” (pp. 48-49). These theories correspond to the work of Randy Barnett, Jack Balkin, and Keith Whittington, Mike Rappaport and John McGinnis, respectively.
The descriptions are as accurate as 18 pages will allow. Wurman treats each scholar fairly and concludes that the Constitution is legitimate because each theory has something important going for it. He concludes that if “the Constitution protects natural rights, creates a republican form of government, and is rooted in an act of popular sovereignty, then prudence demands that we obey it today, whatever its imperfections.” (p.81).
Fair enough, though I wish Wurman had spent more time than he does on the exclusion of women and minorities from the ratification processes. His essential response is a shrug of the metaphorical shoulder. Well, no one is perfect and we must accept the founders’ world that they were living in not some make-believe place: “The Founding was as legitimate as could be for its time.” (p.64). Maybe, but the question is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.
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