Jefferson vs. Madison: Cato tackles Originalism

Ilan Wurman, attorney and legal scholar, has written a new book entitled, A Debt Against the Living: An Introduction to Originalism, providing further insight into the legal theory of originalism, a legal philosophy applied by conservative and libertarian jurists and academics. It usually entails looking at the founder’s original intent.

Wurman’s book focuses on a series of letters between Thomas Jefferson and James Madison. Jefferson famously wrote, “Earth belongs to the living, not the dead.” Many legal scholars use these eight words as justification for interpreting the Constitution as a living, breathing, and most importantly, an evolving document.

What’s most important is that many legal scholars who promote this legal philosophy along with the jurists who practice it often ignore the response of James Madison. Madison’s response to Jefferson was, “The Constitution is an improvement of the living” implying that the Constitution is a debt against the living and laying the foundation for an originalist interpretation of the Constitution. Originalism holds that the Constitution should be interpreted by its original meaning.

Who was right?

Wurman argues that Madison viewed the Constitution correctly. Madison and Wurman hold to the premise that the Constitution should be interpreted as a fried chicken recipe. Upon preparing chicken according to the recipe, if you don’t like the taste, you can make changes. Similarly, the Constitution should be followed as instructed with an openness to amendments.

Many legal academics and jurists make the claim that originalism tends to lead to conservative or libertarian ends and is a mere justification for conservative solutions. Wurman’s response was simple, “not always.” His reasoning is that constitutional amendments can be passed to make changes to the Constitution.

In closing his remarks, Wurman called for those in the legal community who hold to the legal philosophy of originalism to be better advocates for the cause itself. Wurman’s book, A Debt Against the Living: An Introduction to Originalism goes on sale in early August with Amazon and the Cambridge University Press.