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08/12/2017

Ilan Wurman on Madison’s Case for Originalism
Michael Ramsey

Ilan Wurman at Newsmax: Madison Rebutted Jefferson with “Debt Against the Living” Proposition. From the introduction:

It has become fashionable to argue that we are no longer bound to the Constitution — at least not to the Constitution of our Founders.

“Why do we care about the Framers of the Constitution?” asks law professor David Strauss of the University of Chicago. The Constitution “was the product of the Framers’ times and the Framers’ sensibilities. What possible reason can we have for allowing its provisions to rule us today?” Paul Brest, a former dean of Stanford Law School, similarly wrote in a famous article, “We did not adopt the Constitution, and those who did are dead and gone.” And Georgetown law professor Louis Seidman wrote in The New York Times only a few years ago that we should “give up on the Constitution.”

Many of these academics rely on a famous letter from Thomas Jefferson to James Madison, in which Jefferson wrote that “the earth belongs to the living,” that “the dead have neither powers nor rights over it.” 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.

Few, however, have heard of James Madison’s reply to Jefferson, in which Madison made a powerful case for constitutional obedience: “If the earth be the gift of nature to the living,” Madison wrote, “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,” Madison continued, “than by a proportionate obedience to the will of the Authors of the improvements” — by a kind of originalism.

Ilan Wurman is the author of the new book A Debt against the Living: An Introduction to Originalism (noted here).