EDITOR’S NOTE: The passages below are excerpted from Ilan Wurman’s “A Debt Against the Living: An Introduction to Originalism,” published last year by Cambridge University Press.
Why does one generation, long dead and gone, have a right to bind another? Thomas Jefferson famously made this argument in a 1789 letter to James Madison: “I set out on this ground which I suppose to be self evident,” Jefferson wrote from revolutionary Paris, “‘that the earth belongs in usufruct to the living;’ that the dead have neither powers nor rights over it . . . . [B]y the law of nature, one generation is to another as one independent nation to another.” This letter from Jefferson is well known: it is often quoted for the proposition that we should not be bound by the “dead hand of the past,” that a constitution that is not a “living, breathing document” is not a legitimate constitution worthy of our obedience today.
Many, in other words, have heard of Jefferson’s letter, and it has come to symbolize a potent criticism of interpreting the Constitution as it was originally understood and of the Constitution itself. It has come to represent the notion that the Constitution is woefully outdated and should not be binding upon us today. Fewer have heard James Madison’s response to Jefferson. But his response makes a powerful case for constitutional obedience. Every generation is necessarily dependent on the previous generations that have cultivated its inheritance, he wrote:
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.
That statement seems remarkable: Does the Constitution truly create a debt against those who live today so that we must—or we ought to—follow the will of its authors? Is the Constitution an “improvement” of the kind justifying our continuing obedience?
Who is right: Thomas Jefferson or James Madison? This book answers in favor of Madison. It aims to arm the reader with basic arguments about the legitimacy of our Constitution and our Founding, and to explain the relevance of these arguments to modern debates over constitutional interpretation. It argues that the Constitution does form a debt against us—against the living generation—that compels us to continue to obey and abide by it today. It then argues that originalism, the idea that the Constitution should be interpreted as it was originally understood by the Framers who wrote it and the public that ratified it, is the only method of constitutional interpretation that faithfully discharges this debt. This book is a short introduction to, and defense of, originalism and the Founding.
Most originalists accept that the question of how we should interpret the Constitution is separate from the question of whether the Constitution is legitimate and worthy of our obedience. That is, the first part of the originalist exercise is to determine what the Constitution actually means. Only then can we decide whether what it says is good. It may be that once we interpret the Constitution—once we discover its meaning—we decide that it’s a bad constitution and should be abandoned.
The proposition we are investigating is whether the original public meaning is the meaning of any public communication, and whether our legal system gives legal effect to such meaning. Let us start with what Jack Balkin has written about why he claims to be an originalist. Balkin is a progressive who has adopted the label originalism for his own theory of constitutional interpretation. We shall discuss his theory in more depth in the coming chapters. The important point for now is that even a progressive constitutional thinker can see the obviousness of this proposition about the nature of language. As he has written, to maintain the framework of the Constitution over time “we must preserve the meaning of the words that constitute the framework.” He says elsewhere: “If we do not attempt to preserve legal meaning over time, then we will not be following the written Constitution as our plan but instead will be following a different plan.”
Isn’t that obvious? What is the Constitution but the meaning of its words? Note that Balkin’s point does not depend on the written nature of the Constitution. Although he mentions “written Constitution” in the second quotation, he could just as easily have taken that out: “If we do not attempt to preserve legal meaning over time, then we will not be following the [ ] Constitution as our plan but instead will be following a different plan.” This point is so self-evident that, as one legal scholar has written, it takes an advanced degree to obscure it.
But what exactly is the meaning of “meaning”? Why do we focus on the original public meaning of the text, instead of the contemporary public meaning, or an original secret meaning? Let us tackle the first proposition: we must look at original rather than contemporary meaning.
The answer is that the content of all communication is fixed at the time of its utterance. Law professor Larry Solum writes frequently on this topic and provides two examples to demonstrate this proposition. Let us take the example of a letter written in the twelfth century that uses the term “deer.” Today, deer means a very specific animal. As Solum explains, it refers to “a ruminant mammal belonging to the family Cervidae” and to a “number of broadly similar animals from related families within the order Artiodactyla.” But it wasn’t always so. In Middle English, the word “deer” meant a beast or animal of any kind.
Therefore, “One can only understand an ordinary letter written between 1066 and the fifteenth century that employed the term ‘deer’ by looking to the term’s conventional semantic meaning at the time of writing; reading the letter and understanding the term ‘deer’ to refer exclusively to a mammal belonging to the family Cervidae would be a type of factual error—a linguistic mistake.” To interpret it any other way would be to misconstrue reality. And the semantic content does not depend on the writing: even an oral communication using “deer” would have the meaning given by ordinary usage in Middle English.
Solum points to an interesting possible example of this kind of semantic drift in the U.S. Constitution. Article IV, section four of the Constitution states that the United States shall protect every state in the union “against domestic Violence.” The contemporary semantic meaning of the phrase “domestic violence,” Solum notes, is “intimate partner abuse,” “battering,” or “wife-beating”; it is the “physical, sexual, psychological, and economic abuse that takes place in the context of an intimate relationship, including marriage.” Yet the Framers meant insurrection or rebellion.
It would be a “linguistic mistake,” a plain-and-simple factual error, to interpret this clause of the Constitution as referring to the modern kind of “domestic violence.” We must interpret the words as they were originally understood because their very meaning is fixed at the time of their utterance. There is no getting around it: “[T]he phrase is understood as referring to its meaning at the time of origin, which encompasses the period roughly contemporaneous with the Framing and ratification—or formal legal approval—of the particular clause or amendment.”
We see now why it would be erroneous to interpret any communication, whether oral or written, with a contemporary semantic meaning that has drifted from the semantic meaning at the time of utterance. Such an interpretation would be a linguistic mistake. But moreover, to permit contemporary public meaning to supply our rules of law would be to give random, accidental drifts in language an authority to determine the law. Yet no theory of political philosophy of which I am aware would justify accidental and random semantic drift as a legal system’s secondary rule of change.
What if the Founders were not originalist? What if the original interpretive conventions the Founders used, or expected the future to use, were nonoriginalist tools of interpretation? Then an originalist would have to be nonoriginalist. Recall that this is the attack H. Jefferson Powell made in his 1985 article, which we briefly discussed in the previous chapter. He argued that the Founders did not intend for their intentions to govern, and therefore originalism is self-defeating.
But Powell’s attack applies only to original intentions originalism, as we have also discussed. It does not follow that the Founders would not have adopted the original public meaning of the Constitution’s words. To ask now whether the Founders were originalist is the same as to ask, “Did the Founders interpret the text of the Constitution as they would have interpreted other legal texts, other written texts, and any human communication intended for a public audience for that matter?” Even a guess here will do: Of course the Founders were originalists in this sense. They thought words had their ordinary, public meanings.
[I]t hardly follows that in writing a specific structure of government the Framers rejected the principles that underlay the Declaration of Independence. Separation of powers is not incompatible with democracy. The Framers believed that separation of powers, checks and balances, and other limits were necessary for the very survival of democracy. We would therefore be remiss to ignore the Declaration in our quest to understand how the Founders understood the legitimacy of the Constitution they created. Madison himself invoked the Declaration of Independence in the Federalist when justifying the authority of the Convention to propose a new constitution that would “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.” And Bernard Bailyn has defended the Framers and their work as being consistent with the ideological origins of the American Revolution.
Indeed, in the Declaration the Founders felt that they must “declare the causes which impel them to the separation” from the political bands that had previously connected them, and thus it manifestly provides insight into general notions of political legitimacy at the time of the Founding. Only foundational principles could justify such a drastic action. By the end of this chapter I hope we will come to see that the writing of the Constitution and its purposes at the time of the Framing evoke the same principles at play in the Declaration.
What, in the minds of the author and signers of the Declaration, made such a break from their previous bonds legitimate? The key clause is well known but also too often overlooked: all men are created equal, they are endowed with unalienable rights including the right to life, liberty, and the pursuit of happiness, and “[t]hat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” In this one line the Founders offered the two most crucial bases for constitutional legitimacy: government must derive its power from the consent of the governed—a social contract of sorts—and it must secure our unalienable rights. In one fell swoop—at least if we buy the Founders’ account—we see that perhaps both the libertarian-originalists and the popular-sovereignty conservatives simplify their grounds for constitutional legitimacy. The Constitution must be rooted in an act of popular sovereignty and it must protect our natural rights.
The Declaration does not stop there, however. The government, it implies, must not only derive its powers from the consent of the governed, but must also continue to rule by self-government. That is, it must constitute a democratic or republican form of government. In the long chain of usurpations and abuses listed in the Declaration—the acts that justified separation from Great Britain—Jefferson, the Declaration’s primary author, wrote that King George III had refused to pass laws “for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.” Further, the King “has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records,” and he has “dissolved Representative Houses repeatedly.” He has refused to cause other legislatures to be elected, and thus the legislative powers “have returned to the People at large for their exercise.” And more specifically, he has kept standing armies without the people’s consent and has taxed them without their consent.
This train of abuses suggests that for a government to be legitimate at all, the people must be permitted to govern themselves in their own legislatures. Legitimate government, then, requires representative government. The Declaration of Independence thus gives us an indication of everything the Constitution, in the mind of the Founders, must accomplish to be legitimate: it must derive its powers from the consent of the governed; it must secure the just ends of government; and it must create a representative or democratic form of government.
We might also note that notwithstanding Jefferson’s letter to Madison, the Declaration of Independence that Jefferson himself authored is in fact consistent with Madison’s view of stability and prudence. The Declaration states that when it becomes necessary for a people to dissolve the political bands that had previously connected them, a decent respect to the opinions of mankind requires that they declare the causes that impel them to the separation. The Declaration did not contemplate whimsical dissolution of the existing social order. That order must secure the people’s rights to life, liberty, and the pursuit of happiness. It is only when a “Form of Government becomes destructive of these ends,” that it is the “Right of the People to alter or to abolish it, and to institute new Government . . . .” By the very reasoning and principles of the Declaration, a people, including our generation, does not have an unequivocal right to alter or abolish its government as long as it, on the whole, secures the rights of the people to life, liberty, and the pursuit of happiness.
None of this is to stay that Madison or the Framers believed that any constitution must be accepted. Indeed, Madison was keenly aware that in the throes of ratification, the federalists were asking the people to reject the government formed by their revolutionary forbears over a decade earlier on the principles of a long history of revolutionary ideology. To assuage his readers about the novelty of the Constitution, Madison asked in Federalist No. 14:
Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theater in favor of private rights and public happiness.
Madison did not believe in blind devotion to antiquity; nor would he have wanted future generation to have a blind veneration for the “names” of the Founding generation. In the same way that the Framers sought to improve upon the earlier experiments with state constitutions and a national government, they expected posterity to continue this improvement.
But in Madison’s passage we find the careful balance between what he described as a blind veneration and a proper indebtedness. Madison in the same breath said that the “manly spirit” of questioning authority will create a debt against posterity—a debt owed the Framers due to their “numerous innovations . . . in favor of private rights and public happiness.” He believed that the Constitution, for it to create this indebtedness, must protect private rights and secure public happiness. It must, in other words, be good and just. Posterity would surely improve upon the Framers’ accomplishment, just as the Framers improved upon the accomplishments of the revolutionaries of 1776. But as long as their frame of government continues to favor our rights and secure our public happiness, prudence demands an adherence to the political bands that already unite us.
Ilan Wurman is fellow and visiting lecturer at the Sandra Day O’Connor College of Law at Arizona State University, where he teaches administrative and constitutional law.