JMC fellow Jeremy Rabkin reviewed A Debt Against the Living: An Introduction to Originalism by Ilan Wurman in The Claremont Review of Books.
Big Tent Originalism
Ilan Wurman’s valuable new book, A Debt Against the Living, lives up to its subtitle: it offers an “introduction.” Wurman wants to persuade readers that “originalism”—the effort to read the Constitution in accord with its original meaning—is a serious project. And he wants to show that it is, in fact, a much more reasonable approach than alternatives that leave judges free to improvise new meanings based on contemporary fads or priorities, thus defeating the point of a written constitution.
At the same time, Wurman advocates for a kind of “big tent” originalism. He touts advances made in the 1990s—most prominently by Justice Antonin Scalia, who emphasized the “public meaning” of constitutional terms at the time of ratification rather than the private “intent” of the drafters—but finds no important differences between Scalia’s “textual” approach and other scholars’ recourse to historical materials in order to illuminate the relevant terms. So long, that is, as textualism is not (as with some scholars) a license to impose contemporary interpretations that wouldn’t have been embraced by earlier writers and ratifiers. To rely on “contemporary textual meaning,” Wurman protests, “implies that our law is determined by accidental changes in language over time.”
* * *
Avoiding unnecessary squabbles makes sense if you want to sustain a coalition, rather than highlight your own distinctive theory. Wurman sounds like he has an eye on elections, or confirmation battles. Before joining the faculty at Arizona State’s Sandra Day O’Connor College of Law, he was, in fact, an aide to speechwriters in George W. Bush’s White House and subsequently did legal work for the Rand Paul presidential campaign. One result is that this book is vastly more readable than a law review article. Wurman keeps a conversational tone and a brisk pace and gets the reader to the last line in just 135 pages.
Jeremy A. Rabkinis a Professor of Law at the Antonin Scalia Law School, George Mason University. Before joining the faculty in June 2007, he was, for over two decades, a professor in the Department of Government at Cornell University. Professor Rabkin serves on the Board of Directors of the U.S. Institute of Peace (originally appointed by President George W. Bush in 2007, then appointed for a second term by President Barack Obama and reconfirmed by the Senate in 2011). He also serves on the Board of Academic Advisers of the American Enterprise Institute and on the Board of Directors of the Center for Individual Rights, a public interest law firm based in Washington, D.C.
Professor Rabkin’s books include Law Without Nations? (Princeton University Press, 2005). He authored “If You Need a Friend, Don’t Call a Cosmopolitan,” a chapter in Varieties of Sovereignty and Citizenship (Sigal R. Ben-Porath & Rogers M. Smith eds., University of Pennsylvania Press, 2012). His articles have appeared in major law reviews and political science journals and his journalistic contributions in a range of magazines and newspapers, including the Washington Post and Wall Street Journal.
Want to help the Jack Miller Center transform higher education? Donate today.