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08/24/2017

A Response to Eric Segall
Ilan Wurman

[Editor's note: for this guest post we welcome Ilan Wurman, Nonresident Fellow at the Stanford Constitutional Law Center and an attorney in Washington, D.C.]

Eric Segall’s review of my new book, A Debt Against the Living: An Introduction to Originalism, is generous at times and sharp at others. I thank him for both. I tease out two significant criticisms from his review, which I’ll tackle in reverse order.

Segall writes that I am “elusive” as to how “liquidation”—the idea that the Founders expected indeterminacies in constitutional meaning to be resolved through a series of discussions and adjudications—is different from something like David Strauss’ common law constitutionalism. He writes, moreover, that because I believe the “sense”—that is, the original meaning—of a constitutional provision is what matters rather than the original expected applications of that provision, I am really just describing “common law constitutionalism and living constitutionalism all the way down.”

Liquidation, however, is inconsistent with the judicial role required by a nonoriginalist theory like Strauss’s. Liquidation recognizes that there are indeterminacies in the Constitution’s meaning; it would be crazy not to. And this recognition is key: there must be an indeterminacy for liquidation to apply at all. Nonoriginalist judges and certainly scholars, on the other hand, often openly avow that nonoriginalist meanings can trump the original meaning of the Constitution even when that meaning is clear. Not so for liquidation, and not so for originalism. If nonoriginalists are on board whenever the original meaning is clear, then I suppose I’ve misunderstood nonoriginalism, and living constitutionalism and originalism are even closer than I had thought.

More still, liquidation requires a series of discussions and adjudications across all three branches of government and perhaps even the states themselves before indeterminate constitutional meaning can become fixed. In contrast, judicial supremacy, advocated by most nonoriginalists and a fact of life today, would terminate all such discussions and adjudications as soon as the judicial branch has spoken.

The second significant criticism—and really, this is related to the crux of all nonoriginalist criticisms of originalism—is that I did not sufficiently address “the exclusion of women and minorities from the ratification process,” because even if the Constitution “was as legitimate as could be for its time,” the question, Segall writes, “is whether the Constitution is legitimate today, not in 1787 when only white males could vote and hold most important jobs.”

What I intended to convey to my readers is that the Constitution isn’t legitimate (or illegitimate) solely based on the composition of the group of individuals who framed or ratified it. The first and most important requirement for the Constitution’s continuing legitimacy today is that it continue to accomplish what a constitution for a free society must accomplish: enabling our right to self-government on the one hand, and ensuring sufficient protections for our natural liberties on the other. These two competing ends of government are in tension with each other, and, as Burke once said, it takes a powerful and combining mind to balance them successfully.

Our original Constitution—particularly as it has been perfected with subsequent amendments—balances these two ends remarkably well.  It does so by creating a regime of self-government that, through ingenious mechanisms like the separation of powers, checks and balances, the representative mechanism, the division of federal and state power, the enumeration of power, and the bill of rights, channels our exercise of self-government in ways that remedy the vices inherent in popular regimes.

This original constitution continues to be legitimate because it continues to balance these ends remarkably well. Indeed, one of the key virtues of our original Constitution is that it did not actually do or require very much. The Framers protected only those rights most essential to the success of a free society, leaving the rest to the democratic process because they knew we would evolve and progress over time.

So we come back to the criticism of the Framers. The position I take in the book, perhaps less clearly than I had hoped, is that it is not a good reason to exclude the Framers’ accomplishment from our recognition today merely because they were all white and male and many of them were slaveowners. After all, we don’t celebrate the Framers for any of those reasons. They did not invent slavery, the exclusion of women, or the exclusion of the poor, which had been universal. The Framers’ achievement was quite different: Their achievement was creating a regime of self-government committed to the principle of equality under law, and that successfully balanced the competing ends of government. It was framing a constitution that abolished property requirements for federal office, and that abolished hereditary privileges and titles of nobility.

If the Framers’ slaveowning and exclusion of women were sufficient reason to ignore their achievement, then all past acts—even those that continue to redound to our great benefit today—would be illegitimate so long as some voice in society that we now recognize as important was not sufficiently heard in the past. In the book, I used the example of the Civil War amendments. Were they illegitimate because women could not yet vote? That would be absurd. They were legitimate whether or not women could then vote, because these amendments accomplished good and just things in the world—they were improvements made by the dead, as Madison would have said, that continue to form a debt against the living today. The exclusion of women, which was not peculiar to American society in any way, is not a good enough reason to consider the Civil War amendments nonbinding.

The exact same argument can be made about the Constitution. In my view, the Constitution would be unworthy of our allegiance today only if the act of framing and ratification was thoroughly unjust for its time, or if it failed today to do what a free constitution has to do. I think neither condition prevails. So long as our original Constitution reasonably balances our right to self-government and our natural liberties, even if it doesn’t achieve everything one might want—and despite the flaws of its Framers—it achieves enough to continue forming a debt against the living today.