PROBABLY BEST NOT TO CITE MARSHALL...:

[I]t does not go too far to say that originalism as an approach to constitutional interpretation is simply a matter of common sense--the approach we would certainly choose if we brought no political predispositions to the interpretive enterprise. This is the lesson of Ilan Wurman's fine study, A Debt Against the Living: An Introduction to Originalism. As his subtitle indicates, Wurman does not attempt a comprehensive account of and defense of originalism--a project that could grow to an enormous size, given the massive amount that has been written on this topic. Instead, he offers a helpfully brief, and an admirably clear and engaging, explanation and defense of originalism--drawing on, popularizing, but in some cases also deepening arguments made by earlier scholars.

Originalism seeks to understand the Constitution in light of its original public meaning. As Wurman shows, this is not a politically motivated choice so much as it is the ordinary way that we would seek to understand the meaning of any written document--and indeed any communication at all. Communication is a public act, and language is a public phenomenon, the means of conveying ideas to others in a shared world of discourse. Thus we ordinarily interpret any utterance in light of the public meaning of the words used in it. Accordingly, when we turn to interpreting a communication from the past, we seek the public meaning of the words during that time period, because that is the meaning we have to assume that the writer or speaker intended and that his listeners or readers would have understood.

Proponents of the living Constitution contend that the Constitution, a document written and ratified in the past, ought to be interpreted in light of contemporary conceptions. That can sound attractive based on the results that some might want to achieve. But if we put those results aside and ask only what is a sensible approach to understanding a document from the past, we know that we must seek the original public meaning and that we will be led into the most ridiculous blunders if we do not. To take one obvious example, if we read a letter from the seventeenth century and find someone referred to as "a gentleman," we will go far wrong if we think that this means he is a nice person--which is what we would mean today. It means rather than he belonged to a particular social class, that he came from a particular kind of family. We would, of course, go even more wrong if we applied a twenty-first-century meaning to a seventeenth-century description of a person as "gay."

If we are trying to interpret--to correctly grasp the meaning of--a document from the past, then originalism is clearly the right tool. Here, however, we are talking about not just any document but about a constitution, which is a kind of law. This raises another question and another difficulty. A law does not just communicate ideas and information to us but purports to exercise authority over us. A law tells us what we must do. And it immediately occurs to anyone--even to children, as parents know all too well--to ask: why should I do what you tell me to do?

This question is raised by the defenders of the living Constitution. As they have famously asked, why should we be governed by the "dead hand of the past?" Although originalism is certainly the founding-era approach to constitutional interpretation, the challenge posed by this question also has deep roots in our history. It was raised by no less a figure than Thomas Jefferson, who held that one generation has no authority to bind future generations. In 1789, Jefferson, in a letter to his friend James Madison, held it to be "self evident" that "'the earth belongs in usufruct to the living;' that the dead have neither powers nor rights over" it, and that "by the law of nature, one generation is to another as one independent nation to another."

This Jeffersonian objection might appear decisive. After all, we live in a modern democracy, in which tradition has very little authority. Fortunately, Wurman provides an answer to Jefferson's challenge--an answer coming from no less a modern and American figure than James Madison.

Madison responded to his friend's claim by making an important distinction:

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 from them. This debt cannot be otherwise discharged than by a proportionate obedience to the will of the Authors of the improvements.

Of course, the political societies we inhabit, and the systems of law on which they are based, are not the gift of nature but "improvements" devised by our predecessors. Therefore, in Madison's view, they have a presumptive claim on our obedience.

This sounds rather Burkean. If Madison is to be taken as a guide--and who can deny his authority?--then a kind of conservative submission to inherited norms as binding on the living is compatible with our modern, democratic, and rights-based regime. Indeed, Wurman notes that Madison's conservatism is more consistent with the Declaration of Independence than is Jefferson's radicalism. After all, the Declaration says that men should cast off traditional authority not because it has no power to bind them at all, but only when necessity compels them to do so.

Once again, Wurman's argument reminds us that originalism--here meaning not just an interpretive approach, but the idea of being bound by the authoritative decisions of past generations--is not so much a politically motivated, partisan choice as it is simple common sense. The living constitutionalist asks: why should we be governed by the dead hand of the past? We may respond: it happens all the time. Being bound by the dead hand of the past is the most ordinary thing in the law, in the most commonplace private matters as in the grandest public ones.

Tweet   @brothersjudd