U-MN Law's Ilan Wurman on U.S. Constitutional Originalism

The Learning Curve Ilan Wurman

Alisha Searcy: [00:00:00] Welcome back to the Learning Curve podcast. I’m your co-host, Alisha Thomas Searcy, from the Center for Strong Public Schools, and I am excited to be joined today by a special guest host, Minnesota former Supreme Court Justice Barry Anderson. Welcome back, Barry.

Barry Anderson: Delighted to be here. I’ve filled in on occasion, and this is one of my favorite retirement assignments.

I retired from the court in 2024, having served 19 years on the Minnesota Supreme Court, six years before that in the Court of Appeals, and then as a general practice trial lawyer before that. And I’m a longtime fan of The Learning Curve, and I’m delighted to have the opportunity to work with you today on a very interesting topic, and we’ll be getting to that in just a moment.

Alisha Searcy: [00:01:00] Yes, we will. Now, before we get into that, we always like to start off with a couple of articles. So would you like to share with us what you’ve read this week and what you wanna share?

Barry Anderson: Yes, I’d be delighted to talk about this press release that was issued by the Institute for Justice, in which the Institute for Justice announced that it, along with a 14-state coalition and other parties, filed briefs in the United States Supreme Court urging the court to grant a petition, this is the process by which the Supreme Court takes cases, asking whether the government can withhold aid from children simply because their parents exercised a constitutional right.

And what’s interesting about this press release is it doesn’t occur in a vacuum. Over the course of the last several years, there have been a number of important decisions dealing with religious liberty issues under the First Amendment. This fits squarely within the framework of those conversations, and it is a challenge to a Massachusetts regulation that bars children from receiving special education services at private schools if those [00:02:00] students attend, but would allow them to get those services at public schools.

And those private schools that we’re referring to here are religious in orientation. And so that tees up the issue here. We don’t know what the court’s going to do about this. The case actually does, as I said, come out from Massachusetts. Pioneer Institute, I think we should make disclosure here, has been involved in this.

And of course, the Institute for Justice is handling the appeal. We don’t know what the court’s going to do with this. There’ll be responsive filings from parties who don’t agree on this issue, and the court will decide in due course whether or not it’s going to actually hear the appeal. It can take anywhere from a month or two to several months, and the court may, in fact, you know, request further information and so forth.

So we’re many months away from having more to say about this, but it is an important First Amendment issue. And like I said, it fits within the framework of some really interesting cases that the court has decided in, in this field. Actually, some of that’s been discussed on this podcast. If people are interested in it, you could [00:03:00] search through our archives and you’ll find some conversation about it.

That’s probably more than people wanted to know about it. I think it’s fascinating, and I’m looking forward to hearing what the court decides to do with it.

Alisha Searcy: Yeah, it is fascinating, and I do recall talking about this a little bit in previous shows. And regardless of where you stand on public versus private, I think we should all agree that we want kids to be served and get the services and resources that they need.

So I’m very interested to see what happens, and perhaps when we do get a decision, we need to have you back so that you can break it all down for us.

Barry Anderson: Yeah, well, uh, you know, we could discuss some of those other cases. The only problem is you guys only give us about 30 to 40 minutes, and I, I could go on for hours about this, but that would be extremely boring, and we won’t inflict that on people.

So I look forward to that invitation if it occurs.

Alisha Searcy: Yes. Well, thank you. We’re happy to have you today. Well, I have an article that is talking a little bit about AI. At Center for Strong Public Schools, we are having more conversations about AI, wanting to embrace it within the K-12 system with some guardrails, of [00:04:00] course.

So I came across this article from Chalkbeat, “The Problem With an AI Tutor: Students Don’t Want to Use It” So I have to say I was actually surprised, as I think I entered this work thinking, and particularly around AI, assuming that students will want to embrace AI, that we need to, you know, make sure that we’re on the cutting edge in terms of innovation and using AI in schools.

But in this particular case, this study found that students who are using Khan Academy resources, and that’s where this study was done, students who are using Khanmigo is what it’s called, an AI chatbot associated with Khan Academy. They found that when students had access to it, they really didn’t use it very much.

And so I think the question is, did they not use it, and the article kind of talks about this, because it didn’t automatically give them the answers and it forced them to have to do some thinking, or as we call it, cognitive load. So it asked, [00:05:00] you know, it gave an example of a back and forth with the chat, and the student asked, like, “Tell me a joke.”

So just kind of off task, but the AI bot went right back to trying to keep them on task. And so I think it’s interesting, as we look at different tools that are used in terms of AI, I’m thinking about Indianapolis Public Schools. It’s using AI right now on a pilot to allow teachers to use it for lesson planning, and so I’m interested to see how that turns out.

I think we’re seeing schools in Louisiana, New Orleans in particular, who are using AI. And so as we see more of these studies, I think we’ll learn a lot more about how students actually want to interact with them or interact with AI tools. In this particular study, again, they found that the students who did actually use the chat or AI tool with Khan Academy, they remembered the material when they were showed it again the following week.

So they know that it can work, but they just don’t [00:06:00] use it as much. And so anyway, interesting piece. It’s in Chalk Beat. I think we have to keep studying, keep seeing how effective AI is or is not going to be. At the end of the day, as, as we’ve had guests on before, we’ve talked about just the need to make sure we incorporate technology in its many different forms as a tool, not necessarily the solution.

Just something to add to the conversation for today.

Barry Anderson: I would add to this that some headlines have been generated in the legal business on this topic, and one of the areas of real concern, and it was at one time limited just lawyers, unfortunately it’s become a problem for some judges as well, both state and federal, is the issues associated with AI generating false citations.

Yes. Cases that don’t exist. And dealing with those questions has been a challenge for court systems. And then on the education side, AI has presented issues, students relying, you know, heavily on AI, that may in fact affect their ability to perform well on exams and things of that sort. So it’s got lots of benefits.[00:07:00]

There are some burdens as well, and the final chapter on this has not been written.

Alisha Searcy: Not even close. And this is sort of relevant, but to your point about the courts, we had a case here in Georgia where there was a assistant district attorney who was using ChatGPT for some of her cases, and I think it went to the state supreme court, where essentially she was admonished for using ChatGPT, and again, using cases that weren’t actually real.

So it’s frankly shocking that a lawyer would even attempt to use ChatGPT for their cases, but the fact that it’s happening, we need to be aware, and I’m glad that the courts are staying ahead of this.

Barry Anderson: Indeed.

Alisha Searcy: Looking forward to a great show today. We have on with us Ilan Werman. He is the Julius E. Davis Professor of Law at the University of Minnesota Law School.

We’ll be right back.[00:08:00]

Ilan Wurman is the Julius E. Davis Professor of Law at the University of Minnesota Law School, where he teaches administrative and constitutional law. He previously taught at the Sandra Day O’Connor College of Law at Arizona State University. Professor Wurman’s scholarship focuses on originalism, the 14th Amendment, administrative law, and separation of powers.

He is the author of The Constitution of 1789, The Second Founding: An Introduction to the 14th Amendment, and A Debt Against the Living: An Introduction to Originalism. Wurman clerked for Judge Jerry E. Smith of the United States Court of Appeals for the Fifth Circuit, and practiced law at Winston & Strawn in Washington, DC.

He graduated from Claremont McKenna College with a degree in government and physics, and earned his JD from Stanford Law School. Welcome to the show, Professor.

Prof. Ilan Wurman: Thanks so much for having me. Really, really excited to be here and love all the work you guys are doing.

Alisha Searcy: Thank you. So since the 1980s, there’s been a [00:09:00] scholarly legal movement toward constitutional originalism, textualism, and the US Supreme Court interpreting the law according to the intent of the Founding Fathers.

Supreme Court Justice Elena Kagan famously declared, quote, “We’re all textualists now,” end quote, during a 2015 lecture at Harvard Law School. Can you begin by defining for us what legal originalism and textualism are, and why they’re important for understanding the US Constitution?

Prof. Ilan Wurman: Sure. So the interesting thing is Justice Kagan said that, but there’s a question whether she really meant it in the same way that self-identified originalists mean it.

Originalism is this idea that we should interpret the Constitution with its original public meaning. In other words, that the original public meaning of the text of the Constitution is the law. It’s what supplies our constitutional rules, as opposed to something else like modern contemporary practices or the modern moral intuitions of judges who all went to Harvard and Yale, [00:10:00] so to speak.

And so the debate here between originalism and its opponents, I just wanna clarify, is not really a debate over this thing called original meaning. I don’t think anybody disputes that texts have an original public meaning. The Supreme Court opinions that the Supreme Court posts on the internet every Monday and Thursday have original meanings, and when people ask, “Okay, what did the Supreme Court mean in this case from 1995?”

Well, we interpret it with the original meaning of the text in question. So people don’t really dispute that idea. The debate over originalism versus, you know, non-originalism, pluralism, living constitutionalism, whatever else you wanna call it, is really a debate over where constitutional law comes from.

Does the source of our constitutional rules come from the parchment under the glass at the National Archives, adopted and ratified by the people and amended since by the people, or does the content of our constitutional law come [00:11:00] from somewhere else, customary practices, tradition, moral intuitions of judges, contemporary best practices, or something else?

It’s not really a question over interpretation. It’s a question of constitutional content, a question of constitutional change, of where our constitutional rules actually come from. And framed that way, I don’t know that Justice Kagan is an originalist. She thinks the text matters, but it’s not really dispositive, and I think originalists would say where the text and the original meaning of the text is known and clear, it should be dispositive in constitutional cases.

Alisha Searcy: Very interesting. That’s helpful. As the country is celebrating the 250th anniversary of the Declaration of Independence, you’ve authored the book The Constitution of 1789, and in it, you begin by saying, quote, “Some of the questions in this book seek to answer as it introduces the basic structure of the Constitution, how the document frames the legislative, executive, and judicial powers of the national [00:12:00] government and distributes power between the national and state governments,” end quote.

Can you give us a brief overview of your new book?

Prof. Ilan Wurman: Like most inventions, I like to joke that necessity was its mother. I wrote it because there was no other sort of single-volume narrative introduction to the original meaning of the Constitution. Its text, you know, history, structure, what is legislative power?

What is executive power? Why did the framers enumerate power? How does that relate to royal prerogative power? What is judicial power? Who has the foreign affairs and war powers? What is the scope of Congress’s power under the taxing and spending clauses of the Constitution or the Commerce Clause of the Constitution?

And so I wrote the book because I was going to be teaching constitutional law, and there wasn’t a book like this available. You know, it took me eight years to write it- Wow … as I was teaching constitutional law for eight years. And quickly, though, I discovered that I also disagree with what [00:13:00] even originalists say about the original meaning of the Constitution.

So there is this debate over whether the Vesting Clause of Article 2, the clause that gives the president the executive power. Many originalists think that this clause is sort of this residuum of all royal prerogative powers. Even if a power is not mentioned anywhere in the Constitution, if it’s historically royal or executive in nature, it belongs to the president by virtue of this clause.

Mm. I disagree. I think the executive power is just the power to execute law. A lot of originalists think that the president can ignore a law of Congress that the president believes to be unconstitutional, and I argue that that’s not the case, that the president, as part of his faithful duty to execute the laws, cannot ignore a law of Congress merely because of a constitutional disagreement.

It would create an absolute veto, whereas the president really just has a suspensive veto, right? The president has a qualified veto that Congress can override, and I think that the [00:14:00] structure and history suggest otherwise. You know, there are disagreements over whether the states can regulate interstate commerce.

A lot of originalists think yes. I think no. Who has foreign affairs and war powers, you know, is a hot dispute among originalists. So I decided not only to write this introduction, but to sort of canvas the debates over all of these questions and then to intervene in them with my individual spin.

Alisha Searcy: Love it.

The American framers’ formative political experience was Englishmen whose educations were grounded in the works of classical Greek and Roman history, the Old and New Testaments, the Enlightenment thinkers Locke, Newton, and Montesquieu, and great English jurists like Edward Coke and William Blackstone. So Professor, can you talk to us about how the founding era’s leaders developed a distinctive understanding of constitutionalism that drew from and yet differed from their British legal roots?

Prof. Ilan Wurman: Yeah, that’s a great question, [00:15:00] and let me draw, I think, from the first two chapters of my book. The first thing I would say is how really this has to do with what caused the American Revolution. Now, I always caution people when I tell you what I think caused the American Revolution, I think constitutional law caused the American Revolution.

I’m a professor of constitutional law. Of course, I think constitutional law causes everything. And so, you know, you definitely want to canvass different opinions about this. But let me explain what I mean by this. In the 17th century, in the 1600s in England, you know, Charles I lost his head. He was executed.

Why was he executed? For violating certain fundamental rights of the English Constitution. These rights weren’t written down anywhere. There was no authoritative written constitution in England. Occasionally, these rights were written and asserted in important statutes or charters like Magna Carta or the Statutes of Edward III or the Petition of Right, eventually the Bill of Rights, you know, of 1689.

But King James was deposed before the Bill of Rights was written. The Bill of Rights was [00:16:00] written right after King James was deposed. So what gave the English people the right to depose them? Well, despite the absence of any superintending, overriding written constitution, they believed that there were certain fundamental constitutional principles rooted in customary practices, rooted in time immemorial, that bound the king.

And so this was sort of this English conception of the Constitution. And then when Parliament was victorious over royal prerogative, over the monarchy, the Glorious Revolution and the Civil War and so on, a new conception of constitutionalism emerged, also an unwritten conception in which Parliament was sovereign and supreme.

Parliament was the Constitution. Parliament could remake and make the Constitution however it wished, because again, there was no overriding superintendent constitution. Parliament was omnipotent is something that you often Here. Okay. Well, what happens when the British Parliament, which has no limits or no conception of any limits on its own [00:17:00] power, starts to enact legislation in the colonies that the Americans believe violate these unwritten customary constitutional principles dating back to time immemorial?

The Stamp Act, which the Parliament said it has absolute authority to impose the Tax Act, and the colonists said, “No, this is taxation without representation,” a fundamental principle of constitutionalism rooted in immemorial custom. Well, you get this clash of unwritten constitutions. You get this irrepressible conflict, let’s say, between these two competing visions.

And so that’s what led to the American Revolution. What’s the solution to that problem? Well, they wrote down their constitutions. This is where written constitutions come from. How do you avoid this problem of the legislature thinking it’s omnipotent and running roughshod over the rights of the people?

Well, you reduce them to writing, and then you have that document adopted and ratified by some sovereign authority precedent to, antecedent to, above, superior to the ordinary legislature, and that’s what the American written constitutions were all about, [00:18:00] and in that way, broke from both English and British practices.

Now, there’s one other unique feature. We are a compound system, so we have a national government, a federal government, and we also have state governments, both exercising sovereignty. This also was an innovation. So you mentioned Montesquieu. Montesquieu was sort of the authoritative author of the old science of politics, which was this idea that republics could only exist in small territories.

But what’s the problem? Big foreign powers, monarchies, empires will just conquer the small republics. So these small republics would have to league in sort of a confederation through a treaty. And so they would confederate, they would create these leagues for purposes of war and common defense and so on, and that’s what the American states did initially.

They created these Articles of Confederation. But the problem with these leagues is that they operate by and on, you know, and through the states. And well, the states, well, you’d have to ask them for troops. You’d have to ask them for money, and many states didn’t pay their fair share. [00:19:00] Georgia didn’t pay anything during the 1780s to the confederated government, which is kind of interesting.

And so the solution of their new science of politics was to create what they called a compound republic. They took this insight of Montesquieu that a national government or a confederated government should exist for certain purposes like common defense, war, general welfare, so limited in its jurisdiction.

But that national government should also be adopted and ratified by the people. The people themselves should operate in the halls of the government, that the laws of the national government should operate through the people and on the people. So the national government would genuinely be a government of the people, by the people, and for the people, not of and by and for the states.

But it would nevertheless remain limited in its jurisdiction to its limited enumerated sphere, leaving the rest of the legislative power to the states. This was a huge, huge innovation, a remarkable innovation, a genius innovation, which they called, again, the compound republic and this new science of [00:20:00] politics.

Alisha Searcy: Very interesting. So you mentioned a couple of things. You talked about innovation just now, and you also talked about written constitutions. So I wanna ask you about Massachusetts. John Adams was the major author of the 1780 Massachusetts Constitution, which remains the world’s oldest functioning written constitution and served as a model for the US Constitution.

Can you talk to us briefly about the unique features of the Massachusetts Constitution, as well as the enduring importance of the early state constitutions, especially when it comes to K-12 education- Yeah … that predated the 1789 US Constitution by nearly a decade?

Prof. Ilan Wurman: Yeah, so there were written constitutions in the states first.

This is really, really important, and where you all are, the Massachusetts Constitution is particularly important for a couple of reasons. One, if I’m not mistaken about it, it was the first constitution that followed this path that I just laid out, which is a written document adopted and ratified by the people themselves, [00:21:00] intended to bind succeeding legislatures.

Many of the other state constitutions, some of them just had charters, and they just converted them into constitutions, but the legislatures did it. I actually think the Massachusetts, its first attempt at a constitution, it’s simply the legislature passed a constitution. And again, if the question is, how do you keep the legislature from violating the rights of the people, well, a legislature that writes a constitution can rewrite the constitution next year or in 10 years.

Again, it, it doesn’t really solve that problem of British constitutional, uh, the British parliamentary supremacy and sovereignty. The Massachusetts Constitution was the first one to be adopted and ratified by the people themselves instead of an ordinary legislative body, and in that sense, solved this problem of what caused and impelled the American Revolution and was a model in that respect for the US Constitution as well.

Of course, the Massachusetts Constitution also has its famous separation of powers provision to saying that the legislative power should separate and independent, the executive power is separate and independent from the legislative power and the [00:22:00] judicial power. The judicial power is separate and independent from the executive and legislative power, and this is something I talk a lot about in my book.

You know, the separation of powers has complicated a lot of things that the government does can be accomplished by Congress exercising its legislative power or by the president exercising executive power or by the courts exercising judicial power. But there are still certain things that only one branch or another can do.

Only Congress can establish the fundamental policies of our legislation. Only the executive can lead troops in war and bring prosecutions. You need a court before someone is deprived of life, liberty, or property, before someone is sentenced to the Tower of London or San Quentin or whatever it is these days.

You need a court. The executive can’t do that on its own. And so this idea that power should be separated didn’t originate from the Massachusetts Constitution, but sort of Massachusetts Constitution was the sort of the apotheosis of its expression, I would say. And why is this important for K through [00:23:00] 12 education?

Just generally, I think people put a lot of store by the Federal Constitution as they should. But if the Federal Constitution doesn’t answer something, you might still have an answer under the state constitutions. So state constitutional law is an important source of rights, often more rights than the Federal Constitution gives, and they can’t be ignored

Alisha Searcy: Makes sense.

So, quote, “Just before the delegates were to meet at the Constitutional Convention of 1787, James Madison wrote Vices of the Political System of the United States, where he laid out some of the principal defects of the Articles of Confederation,” end quote. You write this in The Constitution of 1789. Could you tell us briefly about James Madison’s preparation for the convention, some of the weaknesses of the Articles of Confederation, and how Madison and the delegates used the convention to really address the wider constitutional needs of the new republic?

Prof. Ilan Wurman: This is a great question, and we’ve already answered some of it in the sense of, you know, you listed all of their [00:24:00] influences, and they were incredibly widely read. They read, as you said, the ancients. They read their scripture and their scholastics. They read their Hobbes and Locke and Sidney and Montesquieu.

They were incredibly well-read. But at the end of the day, that doesn’t make one original. It’s what prepares one for the possibility of being original and having original insights, and I think that’s what the founders did. So they looked at the Articles of Confederation, they looked at the vices, which I briefly talked about some of them already.

You had to requisition taxes from the states. You had to requisition troops from the states. Any state could simply secede from the league, if it’s a league of states or just a compact among the states. That was the old science of politics. And so what they were confronted with is this enormous preparation.

They were incredibly widely read in all of these sources, but at the end of the day, the American founding, especially the founding of its federal, its national constitution, required genius, so to [00:25:00] speak. It required the ability to innovate, to see through the limitations of the old ways of thinking, and it’s hard to imagine that kind of situation being reproduced often.

I think it was maybe reproduced in Reconstruction with the adoption of the 13th, 14th, and 15th Amendments, but those types of moments in history are extraordinarily, extraordinarily rare. Alexander Hamilton wrote in the first Federalist that it seems to have been destined to the people of this country, right, to determine whether people are forever destined to be governed for their political constitutions or forever destined to accident and force, to being governed by accident and force, or rather they can be governed by deliberation and choice, reflection and choice.

And I really think that’s the mentality that they came to the convention with. This is their chance. This is their chance to get this right for generations, not just themselves, but for their posterity, and I think they were remarkably successful.

Barry Anderson: Professor Wurman, you referenced a little earlier legislative power, and you write in The Constitution of 1789, quote, “The most [00:26:00] significant way in which the Constitution has long been understood to create a compound or federal republic is through the enumeration of national legislative powers.”

That is by no means a necessary understanding, close quote. Would you briefly discuss in a little greater detail the legislative powers, how we got enumerated powers, as well as some of the key ways that Hamilton and Jefferson differed in their views about legislative power under the Constitution?

Prof. Ilan Wurman: So I say, as you just read, Justice Anderson, that it’s the not a necessary reading of the Constitution that it, it enumerates this power.

There’s been sort of a revisionist literature lately arguing that the convention did not actually intend to limit Congress to specifically enumerated powers, even though the Constitution does seem to enumerate Congress’s power in Article One, Section Eight. Congress gets the power to lay and collect taxes for certain purposes.

It has the power to borrow money. It has power to regulate commerce among the states and with foreign nations. You know, it has the power to coin money, [00:27:00] to raise an army and a navy, and to declare war, and things like that. But the interesting insight here is that the Constitutional Convention actually rejected a resolution to enumerate power.

They voted against a resolution to enumerate Congress’s power. And then the Committee of Detail that actually drafted the co- you know, the early drafts of the Constitution proceeded to enumerate power anyway, raising this question, why did they possibly do it? Now, look, in my book, I show that on the Committee of Detail, three of the five members had expressed interest in specifying Congress’s power, and so it’s just possible that they just ignored the convention’s instruction or, you know, not ignored the convention’s instruction, but, like, one of them, Nathaniel Gorham, basically said, “Look, we don’t have to specify it right now.

We’re establishing the principles, and we’ll write these out later.” And so I think it’s actually somewhat consistent with the instruction the convention gave. But the real insight I wanna give here is it seems to me that the enumeration of powers is less about limiting the national government’s power vis-à-vis [00:28:00] the states, and it’s more about limiting executive power.

It’s more about limiting presidential power. If you look at Article One, Section Eight, at least half, so I think slightly over half, it depends how you count, of the powers there are historically royal prerogative powers. They’re historically powers that belong to the royal monarch. Well, if you want Congress to make law, to have the power to alter legal rights and relations, if you want the executive to carry into execution laws that Congress has enacted and, you know, maybe command the troops in times of war, and you want courts to adjudicate disputes, what do you do with all these historically royal prerogative powers?

You have to give them to someone other than the executive. You have to assign them somewhere else. And so Congress, the convention, wrote these powers out, and they gave them to Congress. And it seems to me that that is really the reason we have, or a principle motivating reason for having an enumeration of powers.

Barry Anderson: So you also write in the Constitution of 1789 that Article 2 created the executive branch, but it is formulated [00:29:00] differently. “The executive power shall be vested in a President of the United States of America.” Close quote. Now we know that the founders’ historical knowledge of the tyranny of the Roman emperor and the founders’ experience with King George III and his ministers made them wary of executive power.

And then we’ve got Arthur Schlesinger’s 1973 book, The Imperial Presidency, which I will just say as an aside to show how old I am, I had to read as part of my political science and history degrees from Gustavus in the early 1970s. Thought it was kind of a slog, actually. But anyway- … that book, that book has been a touchstone for those concerned about the ever-growing administrative power of US presidents over the last century, and we certainly have been having conversations about that.

What does constitutional originalism and textualism have to teach us about limiting executive power?

Prof. Ilan Wurman: There’s this really interesting debate about what’s called the unitary executive, and I think this is, like, a serious misnomer because we obviously only have [00:30:00] one president, and the question is the scope of the president’s power.

But the debate is basically, like, can you create independent agencies? Can, you know, Congress pass laws and can the execution of those laws be given into hands, assigned into hands, officers who are not controllable by the president, who can’t be removed by the president, who are supposed to exercise sort of this independent discretion and, you know, depends how far you take the theory.

Some people also say, uh, so as I mentioned earlier, there’s this residuum theory of executive power that, that the executive vesting clause vests in the president all this power royal in nature. Well, if you combine these two ideas, you start to have a very independent executive with enormous amounts of power, and this is called the unitary executive theory.

What I try to show in my book is that actually the framers decided upon a unitary executive, on unity in the executive, precisely because they had carefully circumscribed the president’s powers. [00:31:00] And so I basically show that Madison and others said, “Hold on. Before we decide on whether we’re gonna have one president or three presidents, let us first establish, let us first settle upon the scope of the president’s powers.

Let us determine what the executive power is.” They basically resolved that the executive power was to execute Congress’s laws and to appoint officers to assist in the execution of Congress’s laws. But other than that, there was really no content to executive power. There were royal prerogatives, some of which were assigned to the president, like commander-in-chief power, others of which were assigned to Congress.

But the point is that I wanna make, the framers made the president unitary, not because they wanted, like, this big, robust, you know, scary amount of executive power. They didn’t want an imperial presidency. They wanted unity because they wanted a president who could exercise powers energetically, secretly, with dispatch when necessary, but only over those limited things that were truly suitable for a single person, [00:32:00] like law execution, like commanding the public force, commanding the army after Congress has authorized war.

So that is the idea of my chapters on executive power. There’s this phrase also from The Federalist Papers that I use where Hamilton basically says the idea was to give energy to the executive, but only as far as Republican principles will admit, and that requires a narrow, limiting understanding of what powers the president has.

But those powers that he has, he can execute energetically, independently, and secretly, and with dispatch and with energy, and so that’s sort of the claim that I make in the book.

Barry Anderson: Well, let’s move on to a slightly different topic. Alexander Hamilton writes in the Federalist Papers, number 78, “Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least [00:33:00] in a capacity to annoy or injure them.”

Close quote. Well, we today note routinely that the fate of the Constitution seems solely in the hands of nine justices on the United States Supreme Court. In the Constitution of 1789, what’s your originalist and textualist view of the appropriate constitutional role for the Supreme Court of the United States and the limits on judicial review?

Prof. Ilan Wurman: Hamilton’s passage there does seem a little quaint from the modern perspective. But as historically understood, it was supposed to be true, and under the historical conception of judicial power, I think it was true. So let me connect this a little bit to the first question I answered, uh, which is really about the causes of the American Revolution and the origins of written constitutions.

I do think they imply judicial review. It implies that there are limits on legislative power, and so that’s proposition number one, is that we wrote down constitutions precisely so that the legislature would not be the final arbiter of [00:34:00] its own powers. Okay, that’s proposition one. Proposition two: What is judicial power?

What do judges do? And the answer is judges decide cases. They decide disputes between private individuals or between the government and a private individual under existing law. They don’t make law. They decide cases and disputes under existing law. Well, sometimes there are multiple sources of law bearing on a question.

This is called conflict of laws. If you have a Mississippi resident that attacks an Alabama resident, do you sue in Mississippi courts? Do you sue in Alabama courts? Does the substantive law of Mississippi apply? Does the substantive law of Alabama applies? When the civilian courts are open in Illinois during the Civil War, does martial law apply when you have saboteurs that you want to, you know, imprison, or does civilian law apply, right?

I mean, this is a conflict of laws problem. Well, judicial review is also a conflict of laws problem. It’s this idea that sometimes a law of Congress says do X and sometimes the Constitution says do not X, do the opposite of [00:35:00] X. And a judge, just as in any conflict of laws problem where more than one law bears on the question and they conflict with each other, the judge has to decide what’s the prevailing law, which of these sources of law applies.

And the answer isn’t written down anywhere. It just proceeds logically from the premises of the American Revolution. We wrote down constitutions precisely so that Congress could not be the final arbiter of the limit and scope of its own powers. And so I think the revolution and the fact of written constitutions is what answers this question.

Judges, in deciding cases, should give precedence to the Constitution over the law. Now, it doesn’t mean they have final say over all constitutional questions for all time with respect to all- People. In other words, the courts bind parties, but they bind the individuals to the specific cases. So take Dred Scott against Sandford.

I talk about in my book how the Supreme Court got this case terribly, terribly wrong by concluding that free persons [00:36:00] of African descent could never be citizens of the United States. And in a debate between Lincoln and Stephen Douglas in the Lincoln-Douglas debates, Douglas basically accused Lincoln of trying to overturn the Supreme Court and reverse the Supreme Court, you know, by what tribunal will he reverse it?

Will he appeal to Lynch’s law? Will he appeal to the mob? And Lincoln basically said, “No, no one is trying to spring Dred Scott free from his master. The court’s decision in Dred Scott binds Dred Scott and John Sandford. It doesn’t mean that I as president must now deny licenses, coasting licenses or passports to African-Americans whom I believe to be citizens of the United States.”

Hiram Revels was seated as a United States senator in 1870, who was an African-American. If Dred Scott was the law of the land, he had not been a citizen of the United States for the requisite period of time to be a senator. The Senate seated him anyway. So in other words, the judicial role is deciding cases that requires judicial review.

It does not, however, mean that judges are the final and ultimate arbiter of all constitutional questions.

Barry Anderson: And of course, you know, if we had [00:37:00] unlimited time, we would explore that in greater detail. But we don’t, and so I’m gonna move on to a little-

Prof. Ilan Wurman: All the more reason for someone to buy the book.

Barry Anderson: Exactly.

Exactly. We endorse that here. Buy the books of the authors we interview.

Prof. Ilan Wurman: You don’t have to read it, but you should buy it.

Barry Anderson: Yes. Yes. I think you should read it. And I, I’ve actually done both, and I’m wiser for having done so. But let me take it in a little different direction here because it kinda relates to what we were just discussing.

You talk about state sovereignty and how students study it in law school in your book. I wonder if you could briefly discuss your originalist views of topics like federalism, like slavery, and I think that leads us to a very brief summary of your other book, The Second Founding: An Introduction to the Fourteenth Amendment.

Prof. Ilan Wurman: The 14th Amendment obviously changed somewhat America’s conception of federalism, though how much is a point of disagreement, and I am something of a dissenting voice about this. First, on this book, The Constitution of 1789, I’ll just say that, like, my most controversial opinions probably come in these federalism [00:38:00] chapters, ’cause conservatives totally disagree with things I say and progressives totally disagree with things that I say.

So probably the edgiest view I take is that there’s probably originally no federal power over welfare spending, over most welfare spending, because there’s no spending clause in the Constitution. There’s the necessary and proper clause, and that has to be done pursuant to an enumeration of power. But if that’s true, when you think about it, like, I’m pretty sure the vast majority of government spending these days is welfare spending.

So that’s kind of an interesting take. I disagree with originalists who think that Congress can’t use its commerce power to browbeat the states into passing minimum wage laws and things like that. So there are lots of disagreements there. But let me go back to the 14th Amendment question, ’cause it’s super interesting.

A lot of people think that the 14th Amendment, that it says, “No state shall abridge the privileges or immunities of citizens of the United States,” that no state shall deprive any person of life, liberty, or property without due process of law, no state shall deny any person equal protection of the laws.

People think this radically changed federalism, that this, you know, the Bill of [00:39:00] Rights historically only applied to the national government. People think that the 14th Amendment made the Bill of Rights applicable to the states and empowered the national federal judiciary to enforce a national minimum of rights, which would be a huge federalism revolution, and that is the conventional wisdom today.

That’s the doctrine today. In my book, The Second Founding, I show, I argue that really, in my view, I think what they were doing was enforcing equality amongst citizens of a state. So states can still regulate guns, they could regulate speech, they could regulate contracts, they could regulate property.

There could be varying regulations from state to state. They must just treat their own citizens equally, free of arbitrary discrimination. And so this would have radical implications for today, but it was the conventional wisdom 50 or so years ago. But lots of controversial stuff in both books, let’s put it that way.

Barry Anderson: And well worth reading. So let’s move on to what will be our last formal question of the day, and we turn to what James Madison wrote in the Federalist [00:40:00] Papers, number 47 in this case, as follows: “That the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

What does your book, The Constitution of 1789, have to teach us about restoring our constitutional system in support of our ongoing experiment in ordered liberty?

Prof. Ilan Wurman: So I love this question because it’s obviously true that the separation of powers preserves liberty. It’s obviously true that if you give the power to write the laws and to execute the laws and to adjudicate the laws to a single person or s- you know, or a single body, that that is more amenable to tyranny than having different actors through different constituencies and different appointment mechanisms exercising different kinds of powers, all of whom have to harmonize, right, for sort of something to happen.

So that’s obviously true, and they obviously believed it. But I think there’s also an affirmative case for the separation of powers, [00:41:00] and that affirmative case is the framers separated powers and structured institutions to exercise the various powers precisely so that these powers would be exercised well.

In other words, if you want legislative power to be, you know, before you alter legal rights and relations, well, you want the community to deliberate. You want different constituencies, their voices and concerns to be heard. You want debate. You want bicameralism and presentment to the president. You wanna slow down the legislative process and get lots of feedback and a diversity of opinions.

And so they structured Congress that way. The people have a direct voice that way in their legislation. But the executive power, if you want to execute the laws, if you need to suppress insurrections, if you need to repel invasions, well, you can’t do that by committee. It’s really better to have a single unitary executive, which is what we talked about earlier, someone who could exercise this power energetically, secretly, with dispatch if necessary.

And then courts. Courts are supposed to adjudicate [00:42:00] cases under existing law. They’re not supposed to make law, so they should be independent of political influence. And so judges have lifetime tenure and salary protections. In other words, our Constitution structures each branch of government in a way so that it will exercise its assigned power well, so that we can have a functioning government and preserve liberty at the same time, and I don’t think we should lose sight of that.

Barry Anderson: You know, I think that’s a really important point. And of course, there’s an ongoing debate about how to make those three branches of government, executive, legislative, and judicial, how to make them more effective in what they do. And in fact, there have been conferences on how to make Congress more effective and so forth.

We’re not gonna get into that today, but we ought to be keeping in mind that experiment in ordered liberty that you write about in the Constitution of 1789 as we have these conversations about possible reforms. All right. Well, with that thought in mind, Professor, I wonder if you could share a paragraph from your book with our listeners today and read that to us.[00:43:00]

Prof. Ilan Wurman: Sure. I really wanted to talk about the American Revolution, which we’ve done a lot on this show today already, because I did time this book to come out with the semiquincentennial, on the semiquincentennial of American independence. And so let me just read the paragraph where I summarize and encapsulate the answer about the American Revolution and written constitutions.

And I say this, “Writing down constitutions enhances their settlement functions because doing so channels and clarifies the debate over the Constitution’s rules and its answers to questions that need settling. As suggested previously, however, it remains the case that the most important point settled by writing down America’s Constitution was the conflict created by the constitution of customary practices and a competing constitution of legislative supremacy and sovereignty.

A written constitution can commit customary constitutional principles to writing and make them binding on the legislature. The most important point that America’s written constitution settled, in other words, was that the people were sovereign.” I

Barry Anderson: wanna thank you for [00:44:00] your time today, and thank you for that paragraph.

Yes. We’re delighted that you were able to join us today.

Prof. Ilan Wurman: Thanks so much.

Alisha Searcy: Well, Barry, as expected, that was quite an interesting interview. Learned a whole lot about this book and his work, The Constitution of 1789. Just very, very fascinating, very powerful information. What about you?

Barry Anderson: Well, yes, I very much appreciated his conversation about what the founders thought and how we got to, you know, a formal document.

We treat the document as if it just appeared as given from on high, and in fact, it was ordinary people who drafted this thing, and we had to deal with the issues that were real to them at the time. I thought it was a fascinating interview, and in the interest of full disclosure, I should note I am also a graduate of the University of Minnesota Law School, but quite a bit older than Professor [00:45:00] Wurman.

He was not there when I was attending. So, uh, it is nice to see my alma mater referenced here in this important discussion of the history of the Constitution.

Alisha Searcy: Well, it certainly sounds to me like the law school is turning out some great lawyers and jurists.

Barry Anderson: We’ll, we’ll, we’ll see about that.

Alisha Searcy: Well, before we go, we’ve gotta do the tweet of the week.

This week it comes from Education Next: “Do students still need to learn calculus?” Very interesting article about the importance of critical thinking skills and math and making sure that our students are well-prepared, so make sure you check that out. Barry, it was, as always, great to have you. Thank you for your contributions to the conversation today.

Barry Anderson: Delighted to be here, and thanks for the invitation.

Alisha Searcy: Absolutely. Be sure to join us next week. We’ll have on with us Edward Larson. He is the Pulitzer Prize-winning Hugh and Hazel Darling Chair in Law, and is university professor of history at Pepperdine University, and author of Declaring [00:46:00] Independence: Why 1776 Matters.

Look forward to seeing you next week. Take care.