Books, Constitutional Law

A Debt Against The Living: An Interview With Biglaw Associate And Author Ilan Wurman

Originalism: do you really understand what it's all about?

By  
on

Originalism. It’s a bit like net neutrality, the Israeli–Palestinian conflict, or Game of Thrones. Everyone has an opinion on it, whether they understand it or not.

Meet Ilan Wurman, who wants to change that. Wurman, a graduate of Stanford Law School and former Fifth Circuit clerk (to Judge Jerry E. Smith), is a Nonresident Fellow at the Stanford Constitutional Law Center and author of an excellent new book, A Debt Against the Living: An Introduction to Originalism (affiliate link).

Today is Constitution Day (observed). So it’s a great time to talk about constitutional law, originalism, and lots of other good stuff, as I just did with Ilan Wurman.

DL: Happy Constitution Day, and congratulations on the publication of A Debt Against the Living! It’s a timely contribution to a crucial debate — or really debates, plural — within our government and society. Can you give our readers a brief introduction, a la headnotes in Supreme Court opinions, to the book?

IW: Sure. As the subtitle “An Introduction to Originalism” suggests, it’s intended as a short introduction to and defense of originalism — but really it’s more than that. It’s also an introduction to and defense of the Founding. Because as you saw when reading the book, I think you can’t fully defend originalism without also defending the Founding, and that’s something that’s so rarely done in the law schools and in the law reviews. Now, the book also does more than that. It gives a brief history of the idea and updates readers on the latest scholarship and problems in originalism, too. And all in just 135 pages!

DL: It’s great to have such a clear and concise introduction to such an important topic as originalism. Can you tell us about how you came up with this book idea — your original intent as an author, if you will?

IW: I wasn’t ever really taught originalism in law school. It was just sort of something you had to pick up on your own. I think my only classroom time on originalism was a short discussion in 1L con law about competing interpretive methods. I came out of that not really knowing the arguments for or against originalism, and so when I got back home I tried to find an introduction to originalism. And to my surprise, I couldn’t find one! There are many good books written about originalism, some anthologies of essays, and good law review articles — but no short, general introduction. At some point a couple years ago I thought about trying to write that book I wish I had had as a law student, and voila, here we are. Though I should be clear, naturally I think this book would be great in the hands of seasoned lawyers and general readers, too.

Sponsored

DL: Absolutely. I’ve been reading about originalism for years, and I learned many new things about it from A Debt Against the Living, so I think the book will benefit both neophytes seeking enlightenment and lawyers familiar with originalism who want either a refresher or a deeper understanding. If you could dispel for our readers one common misconception about originalism — you discuss many in the book, of course — what would you cite?

IW: The big one is that originalism and living constitutionalism are actually a lot closer to each other when both are properly understood. Of course, there still is a very real difference between the two. But originalists recognize that the Constitution’s text is written at varying levels of generality, that the standards can apply to new circumstances, and so on. In other words, many still equate originalism with an “original expected application” approach, but that’s wrong. What matters is what the Framers wrote, not how they thought what they wrote would apply to particular cases. That’s some evidence of what they meant, perhaps, but just how probative really depends on a lot of factors.

DL: In terms of another misconception, what about the view that originalism is nothing more than a vehicle for enshrining conservative policy positions in the law?

IW: The connection between originalism and conservatism is often misunderstood. Liberals like to say it’s a rationalization for conservatism, and the conservatives respond that it’s “just what the law is.” I’m not sure either is quite right. What do American conservatives seek to conserve? Well, I think they’re seeking to conserve the classically and traditionally liberal principles of our Founding. By that I mean self-government, ordered liberty, equality under law. And, well, what’s originalism? Originalism seeks to preserve the original legal content of the Constitution that gave life to those principles. That’s a connection for sure, but it’s important to realize that it doesn’t require modern-day liberal, conservative, or libertarian results. The Constitution left much to the democratic process where those political ideas could be fought out. It didn’t require very much at all.

Ilan Wurman

Sponsored

DL: Readers of the book will be struck by your passion for and knowledge about originalism, but as you mentioned earlier, you weren’t really taught originalism in law school. How or when did you first get introduced to, or excited about, this subject?

IW: That same day I came home after class. I didn’t find that intro I wanted, but I bought Randy Barnett’s book, Jack Balkin’s book, and Keith Whittington’s book, and I read them. And I liked a lot of what each said, but also started developing my own views. I can’t remember exactly when I first heard of this originalism thing, probably in college, but I can’t recall for sure.

DL: The book is not a tome — under 150 pages, as you noted — but it reflects extensive research and deep immersion in an extensive literature. And as all of us who have written books well know, a huge amount of time and effort goes into a book, regardless of length. Your “day job” is that of Biglaw associate, working on appellate and patent litigation at Winston & Strawn, and you’ve also been politically active, working as counsel to the presidential campaign of Rand Paul and the Senate campaign of Tom Cotton. How did you find the time to write a book in the midst of all this — and what advice would you give to fellow attorneys who are aspiring authors?

IW: Okay, so a couple of things. The first is, always write down your thoughts and ideas. This book took shape over a long time. I probably had a decent draft going before starting at Winston. That said, it does take a lot of extra work, and you’ve got to find a way to stay focused — everyone will be a bit different. I can’t focus when I come home after work, even if it was a light day. My brain is just fried. So about two years ago, I started getting up early every morning and reading or writing before work, sometimes up to two or three hours a day. I’m obviously more tired toward the end of the work day, but you know, the work’s gonna get done anyway — I mean, it has to get done, so you’ll get it done.

DL: And get it done you did. Congrats again, and thanks both for taking the time to chat and for spreading the good word about originalism!

A Debt Against the Living: An Introduction to Originalism [Amazon (affiliate link)]

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

Topics

, , , , , , , ,