Pun Salad

A short but very readable book by Ilan Wurman. Like me, a physics major who went on to less complex work.

On legal topics, I wear the "dilettante" label, not proudly, but honestly. I've found myself in the too-deep end of the pool while reading in this area before. I'm happy to report this is a Goldilocks book: "just right" for my level of understanding and background.

The title refers to James Madison's rejoinder to Thomas Jefferson's suggestion that the country should invent itself a new system of governance every generation, lest it be enslaved to the "dead hand of the past." Madison rebutted:

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.

[Bold emphasis added. Madison was bold-impaired.]

Wurman makes the case, with Madison, against those who prefer the Constitution to be treated as a "living, breathing document." To quote Jonah Goldberg: we "like our Constitution like our beef jerky — cold, dead, tough to chew through."

That's cute, maybe a little too cute for a serious scholar like Wurman. He carefully teases apart the various issues involved in originalism, best stated as the belief that the Constitution's words and phrases should be interpreted according to their original public meaning. He argues that this should be no different from "interpreting" an 18th century recipe for fried chicken: if the recipe stipulates "pepper to taste", it means (a) you've got considerable leeway as to the amount of pepper you put in; (b) it would be an unconscionable error to say "well, let's just use rosemary, instead"; (c) if, in the 18th century, "pepper" meant something other than what we mean today, then you should go with that "original" meaning.

[More on early American pepper here.]

Wurman argues against a number of people, including (most important to me) Randy Barnett and Richard Epstein, who have contended that Constitutional interpretation should proceed from a "presumption of liberty". But also against folks who argue that legislative and executive laws be given the "presumption of constitutionality."

He also approaches the issue of the Constitution's legitimacy; which, on its face, seems problematic for a document whose "We the people" preamble refers to no actual people living today. He makes (at least to my ears) a unique argument about how the Constitution is rooted from the Declaration of Independence three different ways: (1) the easy one, it enshrines the inalienable natural rights of individuals; but also (2) it establishes a democratic order of government, undoing the wrongs of George III; and (3) it was ratified by methods of popular sovereignity, another source of George III gripes.

Wurman is especially good at presenting his opponents' arguments fairly, with understanding and respect. (One measure of this: a couple glowing blurbs on the back are from scholars he takes serious issues with.)