So welcome to tonight’s Constitutional Conversation. We have been trying to schedule this event for quite some time. I think we’ve rescheduled two or three times, and I think we’re paying the price for that because here we are at the end of the quarter when students, some students have this strange view that maybe they ought to be doing something like studying for their exams and cease attending events like this.

I also didn’t realize that this was going to compete with some sort of a pop culture event. I’m not quite sure what it is, but but apparently there’s a big traffic tie-up that Bella tells me that she’s been getting frantic texts and so forth from people who are trying to make it here but are caught in the i- in the traffic.

That’s what they get for indulging tastes in pop culture. That’s all I can say. So anyway, tonight’s speaker is is Professor Ilan Wurman. Very familiar to these hallways since he was a graduate of the law school here, oh, how long ago? Let’s not talk about it. Let’s move on. Let’s not talk about it.

It doesn’t matter. He- pro- proving that he’s actually older than he looks because only when you get that old do you start not wa- wanting to talk about how long it’s been. So Ilan is a graduate here after his his, … clerkship with Judge Jerry Smith on the Fifth Circuit Court of Appeals.

He’s been teaching starting out at Arizona State, and is now the Julius E. Davis Professor of Law at the University of Minnesota. He’s extraordinarily pro- prolific. He’s going to be talking about his newest book tonight that’s called The Constitution of 1789: A New Introduction. It’s his third book.

His first was called, A Debt … The- A Debt Against the Living which is a quote from Madison about the a- about the advantage of having an old Constitution which is essentially a resource upon which one can draw. And his second book was on the Second Founding about the f- essentially the 14th Amendment, the Reconstruction amendments.

In addition to this, he has written just an extraordinary number of important law review articles on m- some of the most important and contentious constitutional questions of the day, including the non-delegation doctrine the unitary executive, the right of the power to, the, of the president to remove, and birthright citizenship, and who else?

I- all kinds of very important and highly controversial questions. Ilan does not shy away from s- strong opinions, so I hope we’ll be hearing some of those. He he also is the host of a podcast entitled Rationally Based. And, Maybe you want to listen to that. So anyway, let please join me in welcoming Ilan Wurman.

Thank you. Thank you so much for having me here today to speak about my new book. I was here, not physically in this room, but in another room about 10 years ago when I spoke about my first book, A Debt Against the Living: An Introduction to Originalism. I wasn’t even a law professor then. I was just a lawyer masquerading as a law professor.
The professoriate was my escape plan from the law firm. And over the last eight, nine years, I’ve been teaching and I’ve been thinking about this book, and I’ve actually been writing it for eight or nine years now. And it’s tr- it reflects my latest thinking about constitutional structure.

It’s entitled The Constitution of 1789, not 1791, because it is not about the Bill of Rights, or at least mostly not, but rather about the Constitution that was implemented and went into effect in 1789 the year George Washington was inaugurated as President of the United States, the year the first Congress assembled, and the year that the Congress established the national judiciary.
So that’s what really this book is about. It’s about constitutional structure. It’s about the nature of written constitutions, the nature of America’s Constitution in particular. It’s about legislative power, executive power, judicial power. What do they mean about all of these things? Now again Professor McConnell said I am known to have strong opinions, and sometimes my opinions are also correct.
They’re just true. I have yet to find a single scholar that agrees with everything I say in this book. Nevertheless, I have the virtue of being correct. And at least it’s going to be a starting point if you disa- for conversation, if you disagree with that proposition. So I only have 40 minutes, and actually I should make sure I can see the time.
And so what I can’t go over the whole book nor would anybody want to suffer through that. So let me tell you what I wanna do specifically. Because it’s timed to come out with the semiquincentennial of American independence. I’m told it might actually be ready this week. That’s what they told me, and then yesterday they said, “Actually, we don’t know.”
But it’s certainly gonna be here by June 18th is what I’m told. Possibly this, as early as this Friday though, May 22nd. So I I hope you can look for that, and I do have a discount code for those who stay till the end. A- as a little inducement not to go to the K-pop boy band down the street.

Though there probably would be time for you to do all that after as well so what I wanna do in this talk is I wanna do a few things and they’re gonna mostly be thematically connected, but with a few digressions. The first is simply why do we have a written constitution? And it has something to do with the American Revolution.

And so I also wanna make sure to talk about that. What was the cause of the American Revolution? Because this is also somewhat a more general audience, I’m actually not sure exactly who’s in the audience I also wanted to say something about the nature of America’s union and its national constitution in particular.

And then I really wanna talk about how that all relates to judicial power and judicial review and the role of courts. There will be obvious implications for today, but I’m probably not gonna tease those out for you. I’m gonna just focus on the Constitution itself, its text, its structure, its history.
I will digress a little bit to executive power for a few reasons primarily because Professor McConnell, my dear friend and mentor and professor here at Stanford, has a wonderful book on executive power with which I disagree on a few things. And so I figured since he was here, I may as well poke the bear a little bit.
A very cuddly bear as for anyone who knows Professor McConnell. So that’s where this is going. That’s the plan. So let’s start at the beginning. Not the beginning, but like the English constitution of the 1600s, of the 17th century. So the image up here is Charles I’s execution.

Why was Charles I executed? Because he was violating certain principles of the English constitution. Now, what were these constitutional principles? This is a bit beyond the scope of the book, but provides some interesting context. What were s- some things King Charles I was doing? Prerogative taxation was the big one.
No taxation without representation came from somewhere, and they believed it in England in the 1600s, but Charles I didn’t wanna call Parliament into session for a variety of reason. And so he came up with certain, shall we say, creative ways to obtain a revenue. He said I can’t tax my subjects, so let me force them to loan me money.

And maybe I’ll pay them back. I’m not exactly sure what the interest was that was promised.” So this was the case of the forced loans. There’s also the case of ship money, where this was a royal prerogative of the king. The king could raise money on his own initiative from the coastal towns if there was some sort of imminent threat of invasion.

And so he said it’s a minor extension to just raise the money routinely, even if there isn’t a threat of invasion.” And so he put some people in the Tower of London who refused to pay the forced loans because they… And the ship money ’cause they thought it was unconstitutional. They petitioned for writs of habeas corpus, and the king’s judges basically said, “Oh, the king’s command is enough.”
So there was also violation of these constitutional principles, like due process of law, that the king could only imprison someone according to the law of the land, not at the royal whim. But the question really is: Where did these principles come from? They weren’t written down anywhere. They were occasionally asserted in written documents, like in Magna Carta, but Magna Carta also didn’t come out of nowhere.

There’s a reason King John was forced to sign it with the barons, because they believed that these constitutional principles emerged from what they called immemorial custom. This was an unwritten constitution where the principles of the Constitution just If you’re Hayekian, it’s like spontaneous order in a way.
Where do customs of the people, w- you know, where do the rules of fashion come from or the rules of grammar? It turns out constitutional law, deeply profound principles of the legal system could also emerge through this sort of kind of spontaneous order. And they were real enough. They were real enough to the people that they executed Charles I for it, but they weren’t necessarily written down.
They didn’t originate in some written constitution. The Glorious Revolution of 1688 took this further. It was a total victory of Parliament asserting these traditional customary constitutional principles against royal prerogative. They even deposed the king, invited William and Mary, and they provided by statute for the line of succession.
So that’s the English Constitution of the 1600s. I promise it all relates even to the very last slide that I’ll show you today. What happens after the Glorious Revolution and this parliamentary victory over the royal prerogative power? You get a different kind of constitutional system. Also an unwritten system.

You get the British Constitution of the 1700s or of the 18th century. This was also unwritten, but it was a different kind of unwritten constitution. After Parliament was a little high on having successfully deposed a monarch and establishing a line of succession for future monarchs, Parliament started to decide that it was the Constitution effectively, or that whatever Congress said was final.
Constit- the Parliament was the final arbiter of constitutional principles. So the gentleman you see here in this image is W- William Blackstone, who gave… The American founders, by the way, loved to cite William Blackstone. They conveniently didn’t mention that he was a Tory against the American Revolution, so it was a bit awkward for them, but they were willing to look past that, right?
After the revolution was fought. And Blackstone really articulated this vision of parliamentary supremacy. Here’s just one snippet from his commentaries on the laws of England. “The legislature being in truth the sovereign power is of absolute authority. It acknowledges no superior upon Earth.” So you went from an unwritten constitution of customary practices to an unwritten constitution where British Parliament would just be the final arbiter of what those constitutional customs or constitutional rules were.

There was no superintending constitution, in other words, whether in custom or otherwise, that bound the British legislature, the British Parliament. Well- What happens when the 18th century British Constitution of parliamentary supremacy, of parliamentary sovereignty clashes with the 17th century English Constitution of prescriptive customary constitutional rights rooted in immemorial custom?
You get the American Revolution, and this of course is a famous illustration of the Boston Massacre. So why did the Boston Massacre occur? What led to the American Revolution? All of a sudden parliament starts enacting legislation for the colonies inconsistent, incompatible with those constitutional principles that the American colonists still believed were rooted in the customary English Constitution, such as no taxation without representation.

To the colonists, that applied to Parliament as much as it applied to the monarchy. And so all of a sudden you have American colonists asserting the principles, customary unwritten principles of the English Constitution, and you have a British Parliament that says, “We are the final arbiters of the British Constitution.
There is actually no limit to what we can do.” And you can see the inevitable irrepressible conflict that necessarily resulted in the American Revolution. Now, the question for us is how did the American colonists solve this problem? They had to win first, but right, how do you… After you win, how do you solve this problem, this irreconcilable tension between a constitution of customary rights and a, an unwritten constitution of customary rights I should say, and an unwritten constitution of legislative sovereignty, legislative supremacy?
What is the answer to that conflict? You probably know where it’s going. The answer is to write down those constitutional principles. How do you prevent something like that from happening again, from the legislature asserting that it has unlimited ultimate power to legislate without any regard to principles, deeper found- more foundational principles of constitutional right?
You take those c- customary constitutional principles of the English constitution, you pick out the good stuff, the best stuff, the stuff you really think is right, and then you write a constitution, and that limits the legislature’s ability to violate, entrench, and infringe on those constitutional rights.
This will become relevant for judicial power because when we get there, what is the implication of writing, of this solution? What is the implication of the solution? That this written constitution would become binding and enforceable against the legislature in a way that customary constitutional principles had never before in the English system been binding against Parliament.
Now, to be clear, they were binding and enforceable in the sense that King Charles I lost his head, right? And that the Americans revolted, and they fought against Parliament, right? So they were ultimately enforceable by the people in that sense. But by writing down these principles and making them binding against the legislature, that has enormous implications for judicial power and judicial review.

So that’s where we’re going. Okay. Now I’m gonna actually do this a little bit more quickly than perhaps I would’ve wanted. I just wanna say something about the, th- this written constitution, the solution of written constitutions really applied in all the states after independence.
You had 13 written constitutions that solved this problem of the English versus the British system, un- unwritten constitutional system. But what was the American Constitution gonna look like? What was the constitution for the Union going to look like? It first started after independence with the old science of politics.
They consulted with the old political authorities, not even that old for their time. Who was the political authority of the time? It was Montesquieu whose beautiful profile you see here in this illustration. According to Montesquieu, and I’m gonna be relatively brief here, there were really three kinds of regimes.
They were republican regimes, they were monarchical regimes, and there were despotic regimes, and each sort of depended on the scope of the territory. So a republic Montesquieu said, could only subsist or exist in small territory. Why? Because republicanism, it was believed, and may still be true, requires a certain degree of homogeneity of passions and interests.
The larger the extent of the territory, the more heterogeneous people’s interests and passions will be, the more wealth there will be, the more ambitious people will be able to divide the people and turn them against each other. So republics, it was believed, really could not exist other than in small territories.
On the flip side, in a large territory at the time, how do you ensure that the central government’s commands are promptly executed? At the time, there was really only one way, and that was fear. It really required a sort of despotic sort of government. So you combine these ideas, and republics really existed, could only subsist in, in, in small territory.
What’s the problem if you have a… Suppose you have the ideal best regime, the best republic, a small territory, what’s the problem? Foreign enemies. And what was the old science of politics, the old political scientist’s solution to this was a confederation, a league of states that would band together in a treaty and for purposes of common defense, for purposes of war and foreign policy.
And so from The Spirit of the Laws, here’s a central passage. Montesquieu said, “It is very probable that mankind would have been obliged to live constantly under the government of a single person,” with the strength of a monarchy, “had they not contrived a kind of constitution that has all the internal advantages of a republican together with the external force of a monarchical government.
A confederate republic, a kind of assemblage of societies.” And this is, of course, what was tried in the American system. The Americans created a confederation. That’s where the Articles of Confederation came from, straight out of Montesquieu, who of course took it from Greek history and Roman history as well.
But it turns out, at least in the modern world, the confederate form of government or confederated form of government didn’t work out too well. Why? Because it required the good faith of the states. It operated on and through the states. If you needed taxes and troops to finance and support the Revolutionary War, you had to ask the states.
Did you know that Georgia didn’t pay anything to the confederated government? I think they paid a little at the beginning but then for seven or eight years they didn’t pay anything at all. And so you could see this was a problem through what were called requisitions for taxes and troops.

Anybody… you had to request them through the states. The other problem, of course, is s- suppose you have a recalcitrant state. How do you enforce the confederated government’s resolutions? Do you go to war against the states? And plus, the state could just say, “Hey, I’m out. This was a treaty. I’m out.”
So it wasn’t, again, adopted by the people either. It wasn’t operative on them. It was only operative by and through the states, and the states w- it was dependent on their good faith, and they could just threaten to break it up or secede, if you will, from a confederated form of government. Also didn’t solve the problem of commercial rivalries among the states.
Turns out that was a big problem as well. And so what was the solution that James Madison here who’s pictured here, who wrote a famous essay on the vices of the existing Constitution where he talked about the vices of the Confederation. What was his solution? What was the solution of the framers more generally?
It was really innovative. This was the new science of politics. It violated the principle that you couldn’t have sovereignty within a sovereignty. And they said, “You know what? We’re actually gonna try it. We are gonna create two sovereignties. We’re gonna create a genuine general or central government, a general- a genuine national government adopted by the people that operates through the people.
The people operate through the national government. The national government’s resolutions are directly binding on the people, but only within its limited sphere.” So they would do the same things, maybe a little bit more, like co- commercial regulations, that a confederated government would be. But it would be a real government.
It would be binding and operate directly on the people, or as Lincoln would say, it would be of the people, by the people, and for the people, not of and by and for the states. So this was their new science of politics. We call- they call it, and I call it in the book, the compound republic. Not a confederated republic, a compound republic.
Two genuine governments operating directly on the people, through the people, by the people, and it is for the people on their behalf, not the states, but each within its sphere. The national government would be within its limited sphere. This is what we James Madison also, again pictured here in Federalist Number 39.
I left it off, but he described the compound republic as neither wholly federal nor wholly national, but in truth, a composition of both. What did he mean by this? He meant it was partly national, what today we would call the federal government. It’s what they called the national government. It would be a genuine government that again operated on the people, but it would only be partly so because it only had a limited jurisdiction.

And then you would have, he said, a partly federal system where- which he referred to as the states were the federal component of the system. They would also have their own governments operating directly on the people, but they would have a residual sovereignty. This is today what we call federalism.
There’s been a little change in, of course, the connotation of federal from back then which again was a reference really to the state components of the system. So today, this partially national, partly federal system is what we call federalism. Okay Some other topics if you do choose to get the book or read the book.
Actually, you don’t have to read the book. You should buy the book. Whether you read the book, that’s a separate… I’ll leave that to you. But you should definitely buy it, hardback especially with Cambridge pricing 90 bucks. I might actually get $5 of that, who knows? But there is a paperback that’s coming out at the same time which is significantly cheaper.
Other things we talk about in the book, I talk about in the book: what was the debate over a Bill of Rights, and why was it omitted? What is the meaning of the Ninth Amendment? The only amendment from 1789 I talk about because it elucidates things about the structural Constitution of 1789. I’ll talk briefly about this today, but what was the relation of the enumeration of powers to the royal prerogative of the king?

What are implied powers? What’s the meaning of the Necessary and Proper Clause? What about interposition, nullification, secession? It turns out, despite everything I told you just now, that the nature of the union, this compound republic, remained contested along into the 19th century and led this contestation, in fact, led to the Civil War.
Okay. But let me say something about the presidency for two reasons. One, because as I said, Professor McConnell’s here, and I have a small bone to pick, maybe a large bone to pick with him, or maybe a few bones to pick with him. But also because the presidency graces the cover of my book. The image you see here, which is also the cover of the book is President George Washington’s inauguration in 1789.

This photograph- this il- illustration was also illustrated on the centennial of American independence in 1876. And so on the semiquincentennial, I felt that there was a dual reason to include that in the cover of my book. So let me just say briefly things about the presidency and what really the debate here is about.
Really the debate is over the scope of the president’s power. What is the scope of the executive power vested in the president? Why is this even a debate? Because without really telling us why, the Framers wrote the first s- clause first section of the the first article of the Constitution differently than the first clause of the second article of the Constitution.
So the grant of legislative power to Congress says all legislative powers herein granted shall be vested in a Congress, which shall be composed of a Senate and a House of Representatives. But Article Two, Section One, the corresponding vesting clause for the presidency, says the executive power shall be vested.
In a president. It doesn’t say all executive powers herein granted, so there isn’t y- so th- there, there’s this difference in language. But there’s also an enumeration of presidential powers elsewhere in Article 2. That’s where the Commander in Chief Clause comes from. So this has created this big debate.
Is the grant of executive power a residuum of all power executive in nature, save for what has been distributed or assigned elsewhere in the Constitution, or limited in some other way? I believe that is the view of my dear friend and mentor Michael McConnell. My view of it is that the executive power that is vested in the president is merely the power to execute law.
That is the only power that it conveys. It has somewhat interesting implications for this debate over foreign affairs and war. Are those powers missing? Who has those powers? So that is a debate that several chapters of the book engage in. There are really two potential implications. One is the debate over the control of administration.
Can the president remove, can the president control administrative officers? And then where, who gets to take the reins, the lead on foreign affair, war, and the other royal prerogatives? So let me just give you in a nutshell what I think the Framers were trying to do. I’m not gonna have an answer to these specific points today, but let me just give you the bird’s-eye view of what I think they were trying to do in the Constitutional Convention.

And at the Constitutional Convention, they were trying to weigh basically two things. So here, this image, this illustration, is President Washington surveying the troops prior, the militia, prior to shall we say s- squashing, quelching the Whiskey Rebellion. I don’t know what the best word is. What they needed was a president who would be able to do this.
A president that would be powerful enough to keep a large compound republic together over a large extent of territory. In the words of Gouverneur Morris or Governor Morris, depends if you ask Abigail Adams or somebody else, but I’ll say Gouverneur Morris ’cause otherwise people look at me funny. But, anyway, I don’t wanna digress too much into Abigail Adams’ letter-writing habits.
She’s probably right about this. But as he said in the Constitutional Convention, we must either renounce the blessings of union or we must provide an executive with sufficient vigor to pervade every part of it. You need a robust, rigorous executive, something more robust than the committees that exercise executive power under the Articles of Confederation, something more robust than the situation that allowed the Shays’ Rebellion to effectively be uncontrolled in Massachusetts prior to the convening of the Constitutional Convention.
So you needed a robust, vigorous executive. But what’s the risk? And so the natural answer is we need a single person. A single person will be able to… a u- a unity in the executive is what’s going to allow the executive to exercise energy, vigor, dispatch, secrecy. This is why they wanted a unitary executive.
But what’s the problem? As Edmund Randolph also said, what does a powerful single unitary executive start to look like or potentially look like? A king or a monarchy. And so as Edmund Randolph said in the Constitutional Convention, a single executive was the fetus of monarchy. So the challenge was, how do you create an executive with sufficient power and energy to pervade the whole union, to ensure that the national resolutions would go executed, that would be able to defend the nation in times of peril, but that wouldn’t turn into a monarch?
The problem, in other words, in the wor- in the words of Alexander Hamilton, and the solution, it’s both a description of the problem and the solution, as he said both in the convention and in Federalist Number 77, was we needed to give energy to the executive, but only as far as Republican principles will admit.
And I love that passage. How can we give energy to the executive, but no further, no farther than what would be allowable by Republican principles and to maintain a Republican form of government? So what are some ways that they did this? I submit to you that they resolved that the executive power was merely the power to execute the national resolutions, to carry into execution the laws of the legislature, and to appoint officers to assist in that task, for whatever that is worth.

So the president would oversee execution of the laws And then when it comes to the other stuff, commerce, foreign affairs, war, these historical royal prerogatives, those are given to Congress. And actually, if you look in Article I, Section 8, as Professor McConnell has also written in his book, half, at least half the powers in Article I, Section 8, Congress’s enumeration of power, are historically royal prerogative powers.

How do you make sure that the president would have merely the executive power and all this royal power he wouldn’t be able to exercise? You write them down and you give them to somebody else, namely Congress. So there’s this whole debate about unitary executive versus non-u- it’s a bit of a misnomer.
I wanna suggest that the theme from the Constitutional Convention was the president was to be unitary, but that was okay because they thought they were carefully circumscribing the president’s powers That was their objective. They first settled on the scope of executive power, the extent of executive authority, and then they said, “Okay, this power can be safely entrusted to one person,” and that was their objective.

Okay, so what are the implications and some other topics? Does the president have a removal power? Yes, but it’s complicated. Actually, since, why not? I’m here, I have a captive audience. This will be recorded for posterity. I have a whole talk I could do on this. I have a very quirky view, but it’s correct.
As I said, most of the other views that I maintain. I think the president has a constitutional power to remove principal officers of the government, but not a constitutional right to control them in the exercise of their duties or the execution of their duties. The president has to assume the political cost of firing somebody, but there’s no constitutional right to command them.
This… You might think I’m crazy, but if I’m crazy, then Daniel Webster’s crazy, George Washington was crazy, Thomas Jefferson was crazy, because they all seemed to think this depended on the day. George Washington especially, depended on the day. Emergency powers. I do not believe that the vesting of executive power is a grant of emergency powers to the president.
This actually shouldn’t be too controversial. It’s what the Supreme Court said in the Youngstown Steel seizure case when Truman tried to steal the s- the seize the steel mills. I will say, however one of my I’ll say frenemies, maybe we’ve moved into nemesis territory. A very famous professor at Yale Law School in his book on the Constitution says, “Surely the grant of executive power to the president included Lincoln’s mandate to save the Union.”

I think that is conflating two very different ideas. I think Washington and Jefferson and others, and Lincoln, had no problems exercising emergency powers on high and important occasions. But they never pretended that they were doing it constitutionally or that made it constitutional. They always had to submit themselves to the people.
And f- and Andrew Jackson imprisoned a federal judge, and a federal prosecutor, and a state judge during the War of 1812. And then after it was all over, he went in front of the federal judge who was ru-rung him up on contempt charges. “You imprisoned me for a year,” or however long it was. And he said, “It was an emergency measure.
I don’t pretend it had authority in law. I submit myself to the judgment of the court.” And fortunately, he just got fined, and he was willing to pay the fine. Okay, this is not what I was supposed to talk about. This is other topics. But again, something to tease things that I say in the book.
Foreign affairs and war. I think Congress has most of the foreign affairs powers surprisingly perhaps. And so there’s a debate of who takes the lead on these issues. I actually think Congress has the lead. I say a little bit about non-delegation and administrative law and so on, but let’s go on to the rest of the talk.
We started 10 minutes late, so I’m just gonna keep going if that’s okay. You can still catch the boy band after. Let’s go back to judicial power And how it relates to a written constitution. What is judicial power? Historically, it was just part of the executive power, right? Judicial powers are the king’s judges enforcing the king’s laws in disputes involving two private people, or in which the king is prosecuting somebody, right?

Where somebody’s life, liberty, or property is at stake. It was part of the executive power. It really wasn’t separated from the executive power until the Act of Settlement of 1701, which gave judges lifetime tenure so they could exercise judgment independent of the king. And for those who read the Latin and know something about popular culture, what is the Latin phrase for good behavior?
It’s quamdiu se bene gesserunt. So for those who know this photograph, this is from the r- modern remake of the movie Dune, or of the Frank Herbert book Dune, and here we have the Bene Gesserit. Why is this a good order? This… here’s the Reverend Mother. Why is this order in Dune called the Bene Gesserit?
Maybe ’cause they ruled for life. They had their posts for life. But I’d like to think it’s ’cause they s- were supposed to be on good behavior for the duration. I’m not sure that’s exactly consistent with their behavior in the books or the movie. But, see? I told you would learn something today, and now you know when you watch Dune or read Dune, you will never see them the same way again because you know what quamdiu se bene gesserunt means.

So again, this is when judicial power was separated from executive power. And again, what was the power? It was simply to adjudicate existing disputes under the law, under existing law. Not to make new law, but when the law was executed and you had to decide, did Person A violate Persons B’s Person B’s rights under the law as defined?
The king couldn’t personally sit in judgment. That required an exercise of the ju- judicial power. If the king wanted to imprison you in the Tower of London, that required an independent judgment on the part of judges or juries. So judicial power, again lifetime tenure insulated from executive power, especially with respect to rights of life, liberty, and property, before deprivation of life, liberty, or property could occur.

Okay. This is actually not super controversial. Does it follow that judicial power includes the power of judicial review? The power of judges under the written constitution to declare a law of Congress to be invalid. This was not a necessary understanding The power to adjudicate disputes under existing law could simply be w- it’s a question of what existing law do judges look to?
Maybe they just look to Parliament’s laws or to Congress’s laws. Maybe they look to corporate bylaws. Maybe they look to the common law. It doesn’t follow that if the federal legislation, a law of Congress, governed a situation, that the judges would have the power to say, “No, we’re not gonna apply that.”
That didn’t follow. Nevertheless John Marshall the great chief justice pictured, illustrated here, asserted the power of judicial review, the power to hold or declare a law of Congress unconstitutional. He asserted this, of course, in the famous case of Marbury v. Madison, but was he right to do it?
My heart is starting to palpitate a little because of the time that I’ve already taken up. So let me just very cursorily tell you that Marshall got almost everything wrong in that opinion, including whether he had to actually deliver the commission where m- but did Madison have to deliver William Marbury’s commission?
Probably not. Delivery, it’s important. He created a conflict between the statute and the Constitution that probably didn’t exist because the statute probably didn’t actually do the thing that William Marbury was asserting it did, so there probably wasn’t this conflict.
But nevertheless, we don’t remember Marshall for all the bad stuff, 99% of the opinion that was wrong. We remember him for the bottom line about judicial review. And so the question is, was that correct? Again, I don’t have very much time left, and there’s still a little bit more I wanna get to.
Let me suggest to you the arguments that he went through were pretty weak But he brought it home in the end. He brought it home in the end. So I’m just gonna talk about the Supremacy Clause. Everybody thinks that the Supremacy Clause creates this power of judicial review because it says, “The Constitution and the laws of the United States enacted or promulgated in pursuance thereof and the treaties are the supreme law of the land.”

There, it says it right there. Only the laws of Congress enacted in pursuance of the Constitution, not in violation of the Constitution. What’s the problem, though? The Supremacy Clause is really a preemption clause. It tells state judges, “You now have to apply federal law of whatever source, the Constitution, Congre- C- Congress’s laws, or treaties, anything in the state constitutions or laws to the contrary notwithstanding.”

It was an injunction to state judges, and in fact, after it says, “The Constitution, the laws, the treaties shall be the supreme law of the land, and the judges in every state shall be bound thereby.” If this was the clause that granted the power of judicial review, how awkward for the Supreme Court justices that sit in the District of Columbia.
They don’t sit in a state. Would they not have the power of judicial review? Okay, let me skip these next two clauses, also a little question-begging and problematic. Let me get to the bottom line. What is the case for judicial review? The answer, it’s a two-part answer. Part one of the answer is the conflict of laws.
What is the conflict of laws? Sometimes there’s more than one source of law applicable to a situation. What happens when a resident of California sues a resident of Oregon? What law does the court apply? Does it apply California law? Does it apply Oregon law? Does it apply a general federal common law?
This is a conflict of laws problem. You have to decide it in certain ways. In wartime, if the civilian courts are open, does the martial law apply or the civilian law apply? This is a conflict of laws problem. A law enacted later in time that’s inconsistent with the previously enacted law, that is a conflict of laws problem.
And the conflict of laws is a body of law that tells us how to resolve those conflicts. The place where the tort occurred is the law that governs the situation. In diversity cases, there’s a whole line of doctrine from Erie that tells us how you choose which law applies. This is just a conflict of laws problem.
I have two laws that apply to the situation, a law of Congress and the Constitution. The law of Congress says X, but the Constitution says you can’t do X.” Which law prevails? And the answer isn’t given by any super Constitution. It’s just the reason we fought the American Revolution. It’s the nature of written constitutions.
We fought the revolution and wrote down our constitutions precisely so we would not have a reoccurrence of the British Constitution of Parliamentary sovereignty and supremacy. As Marshall said, it’s essentially attached to the nature of written constitutions that they must bind and control the legislature.
It’s why we fought the American Revolution. This is why the c- we have judicial review, because it’s like any other conflict of laws problem, and the solution is eminent from the American Revolution. Okay, I’m, I know running out of time, but does it follow… So we’ve established what judicial power is. We’ve established the power of judicial review of constitutionality of federal legislation.
Does it follow that the Supreme Court is the final and ultimate arbiter of all constitutional questions? Or put the point another way, what happens when the Supreme Court gets things terribly wrong? Do we say, “Oh they’re the Supreme Court”? Things really came to a head in the Dred Scott decision.
Dred Scott, of course, is the gentleman you see here. In the infamous Dred Scott decision, the Supreme Court said that free persons of African descent were not citizens of the United States within the meaning of the Constitution. They were not entitled to any of the privileges or immunities that the Constitution affords to citizens.
So again, here, free persons of African descent could never be citizens of the United States. They, as had no rights which the white man was bound to respect. Not only that, but the founders themselves meant to exclude them, both from the Declaration of Independence’s proposition that all men are created equal and from the Constitution’s privileges and immunities.
Was this right? The whole question here is what happens when the Court gets things wrong. I could skip this part, but, let me at least do a little bit. There was a dissent in Dred Scott by Justice Benjamin Curtis, who eviscerated the point that the Constitution did not contemplate free persons of African descent as citizens.
How did it eviscerate this point? He showed that free Black persons of African descent were citizens of at least five states prior to the adoption of the Constitution. They were part of the political community that created the Constitution. And he said nothing in the Constitution itself strips them of that citizenship.
Go look through your Constitution. Where’s the previously African citizens are hereby deprived of their citizenship clause? It’s nowhere to be found. Congress has a naturalization power, but this is a power to make new citizens of foreigners, not to strip citizens, citizenship of natural born citizens, like the free persons of African descent.
And what’s more, the presidential requirement to be a natural born citizen implies that their descendants and children will be citizens. This is all on the slide, which I’m just gonna skip now. It’s everything I just said. The point is, he eviscerated the textual argument about the Constitution of slavery.
But did he get the founders right? Now, if I had more time, I would go through what John Adams said and Thomas Jefferson said, and everybody said about how slavery was evil, but they didn’t have an immediate solution to it. Forget it. Who knows? Maybe they had incentive to be duplicitous for some reason.
Take it from the Southerners themselves. The Southerners themselves admitted that they had moved on from the founders’ view. The Southerners themselves were more enlightened than the founders. They believed slavery was good, the Southerners did now in 1860. Here’s what Senator Robert Hunter of Virginia said on the eve of the Civil War on the floor of the United States Senate.
“We in Virginia have changed our ground. We do not stand where we stood anciently. We do not stand where our fathers stood upon the slavery question. We do not believe what Washington believed, and Jefferson believed, and Madison believed, and Monroe believed, and all the leading men of Virginia for the first 50 years of our existence under the Constitution believed.
We have changed our opinions in Virginia, and instead of now admitting that slavery is an evil to be restricted and discouraged, in which we may hope and pray may be someday entirely removed from the Republic, we now take the ground that it is a blessing to be fostered, encouraged, and extended as a benefit to the Black man and a benefit to the white.”
Chief Justice Taney was not being a faithful originalist. He was adopting the intellectual prejudices of his own time, this positive good theory of slavery of George Fitzhugh and others. What is the point? The point is the Supreme Court grievously erred in the Dred Scott decision. So do they resolve the problem for all time?
This was the debate, and I promise this is the last slide, other than that discount code that I promised everybody who stuck to the end. This was the famous debate between Abraham Lincoln and Stephen Douglas, who illustrated here in the various Lincoln-Douglas debates. Lincoln said, “We want to see the Dred Scott decision overturned,” which led Stephen Douglas, who sounds like a modern American, to say, “Lincoln wants to overturn the Supreme Court?

To whom will he appeal? Will he appeal to Lynch’s law? To the rule of mob? By which tribunal will Lincoln overturn the decision?” “The Supreme Court,” Douglas said, “was established by the Constitution to resolve all disputed questions of constitutional law.” He probably sounds like your neighbor, and maybe like you yesterday.
This was Stephen Douglas’s view. What did Abraham Lincoln respond? He said, “Nobody is seeking to disturb the judgment in the Dred Scott case. Nobody’s whipping up a mob and springing Dred Scott free from the clutches of his master, John Sanford. The Supreme Court’s ruling in that case is binding on the parties.
It’s binding on Dred Scott and his master, John Sanford, and nobody else. We don’t have to follow that, its reasoning, its opinion, its holding as a political rule.” So how did Lincoln execute on this view when he became president? Through issuing coasting licenses and passports to African Americans.
The laws at the time said that passports and coasting licenses could only be issued to citizens of the United States. If we followed the Supreme Court as the final arbiter of all constitutional meaning, then, there would be a problem. Lincoln had his attorney general write an opinion saying, “Taney, Chief Justice Taney, the Supreme Court was wrong in Dred Scott.
They are citizens. You can issue the coasting licenses and passports,” and he did. Another example is Hiram Revels. Who was Hiram Revels? Hiram Revels was the first African American United States senator, appointed by the reconstructed Mississippi legislature in 1870. What’s the problem? The Constitution says to be a senator, you must have been a citizen of the United States for nine years.
If Dred Scott was the supreme law of the land, then Hiram Revels had not been a citizen for more than two years since the adoption of the 14th Amendment. The Senate seated him anyway. They did not feel themselves bound by the Supreme Court’s interpretation of the Constitution for their own constitutional functions, for their own constitutional purposes.
So I hope you see how we’ve gone from the causes of the American Revolution to the advent of written constitutions to the implications for judicial power and judicial review, but it doesn’t follow that judges are supreme. We did not go from a system of parliamentary supremacy and legislative sovereignty to a system of judicial supremacy and judicial sovereignty.
The system is much more complex than that. And with that… okay, here’s other topics that we’ll skip. There’s the discount code that I promised you, which I would’ve given you anyway. If you go to Cambridge, I think you could simply- you can search it of course, but if you put cambridge.org/constitution1789, I think it’ll take you to that page, but you can also search it.
And if you put in the code WURMAN26, my last name, I guess the year 2026. Your guess is as good as mine about that. So WURMON26, and you would- you’ll get a 20% discount. And maybe it’ll show up at your doorstep this Friday. But if not, then no later than June 18th. And with that, I’m happy to take, 10 minutes of questions.
I was told if you do want to ask a question, you have to speak into the microphone and pretty clearly and directly at that. So you could step up or we could pass the potato and throw the microphone, but I’m not sure. I might get disinvited in the future so since Ilan invoked my name, I wondered if maybe you’d like me to take, it won’t take more than three minutes just to explain why he cannot possibly be correct on the issue of executive power.
His position is that the executive power includes only the power to carry out the laws passed by Congress. It is I think clearer, and I don’t use that word very often, that is not the way the founders in the, at the Philadelphia Convention used the term executive power.
How do we know this for sure? Because the Virginia Plan, which was the first draft of the Constitution, had a resolution about executive power, and it assigned to the executive ma- magistrate, it assigned two things. It assigned the executive rights that had been vested in the Congress under the Articles of Confes- of Confederation, and in addition to that, the power to carry into effect the laws passed by Congress.
Now, if the executive power is only the power to carry into effect the laws passed by Congress, then that would have been nonsensical. The Virginia Plan I think clearly contemplates that the executive power goes beyond merely the power to carry into effect the laws passed by Congress.
In addition to that Jefferson, Madison, Hamilton all took contrary positions. We don’t, I’m not gonna get into into that. And certainly the foreign affairs, the the secr- the the first Congress passed a bill establishing the Department of the Secretary of Foreign Affairs, and assigned to that o- officer re- required that officer to, to carry out the instructions from the president regarding foreign affairs.
Where did the president get the power to issue those powers? Not from the bill. It came directly from the Constitution, and if it came from the Constitution, the only place that could’ve come from is the Executive Power Clause. So m- most of what I think of it, I heard Ilan saying tonight, I think is either correct or at least arguably correct. But on this point, he is just demonstrably wrong, and maybe we could get a new, a second edition of this book with a, with an errata sheet.

So I’m glad that he said the word clear. I’m gonna be a little flippant in my response because he also invoked the judge for whom I clerked, Jerry E. Smith, who used to say he counted up the number of times the litigant before him said the word clearly in the argument.
The more times he said clearly, the less likely he was to think the argument was persuasive. And so I will say that of course the president did get some other executive rights. He was given the power to pardon explicitly in the Article 2 Section 2 of the Constitution, Paragraph 1. He was given the commander-in-chief power.
But they had a debate, and actually I think that passage proves my point ’cause when they were debating on the meaning and extent of executive authority, they resolved, the convention resolved that it was the power to carry into execution the national laws and to appoint officers not otherwise provided for.
And that’s when they said, “Okay, we can have a unitary executive.” The executive rights, there was a debate over precisely what those were. Professor McConnell and I disagree about this, too. In the convention, they debated was war and peace an executive right? It was a royal prerogative. It was executive in that sense in Blackstone.
And Wilson said, James Wilson said, “No, I really think that s- this is more legislative in nature, and it’s given to Congress.” The executive rights that the confederated Congress exercised was divided up. They looked at them and they decided which of these are really executive, which of these are really legislative, and they assigned the things they specifically wanted to give the president in the rest of Article 2, such as in the commander-in-chief clause and the pardon power and so on.

So I, I’m happy to do a second edition at some point. I’m not sure yet it’ll contain an errata sheet, but I’m open of course to being convinced otherwise. Who has a more softball question, though? I’ll take a slider but not whatever that was. Please, first here and then go ahead. So I’m curious, Hold on.
Is that on? I can talk closer. I don’t think- I don’t know if you can hear me. We’re not hearing. I don’t think it’s on is the issue. It’s not on? Oh, yeah, it’s just not on. Okay. Try again. Hello? There we go so I’m curious a lot of criticism around your birthright citizenship article has focused on choosing sources.
And I think what I’ve been struck by over and over again looking at your work or and the responses to your work is you seem to have a pretty narrow read for how many people it takes to have an original understanding or even a conflict. And I would say that your readings of some of those sources is pretty tortured to reach the result that I think you pre-committed yourself to in a New York Times op-ed before doing the full research.

Maybe that’s an unfair characterization. But I’m curious what your thoughts are. Professor McConnell’s written a lot about what it takes to have an original consensus, and I find it very hard to find in your work a theory for what original meaning actually means. And, I think you can point to the fact there are a mountain of originalists on the other side saying that you’re wrong.
Yes, there are. And I will say that as Alan Bloom famously said, the fact that there’s a diverse… Thank you for the question, by the way. I should have anticipated a birthright citizenship question. For some reason I didn’t, but totally fair game. The fact that there’s a diversity of opinion, right? That’s inherent in any field on any question. That doesn’t disprove the existence of a right answer.

Your point, I think, is more the first point, which is the body of sort of conventional wisdom in the birthright case is against me on that question. And then I would just push back on a number of ways, like if you read my 135-page article on this, which did follow the New York Times op-ed.
So the New York Times op-ed did come first, and I’m happy to have a discussion on the role of academics in moving Overton Windows in public debates and so on. But what do I say about, temporary visitors, for example? I say that the question was actually quite contested more than you might think.
So there was a case in Lynch against Clark which is the clearest example of where a judge in New York said a temporary visitor from Ireland in that case, wasn’t that temporary, had been there four years and then just decided he had enough, but he, his daughter had been born just before he left, said under the common law temporary visitors were excluded.
But an appellate court in New York in 1860 said that subjects sojourning abroad on a temporary visited are not within the common law rule. It’s amazing that almost no one talks about that. Joseph Story and his commentaries on the Constitution in this case, rather on the, I think the commentaries on the conflict of laws, says a reasonable qualification.
Conflict of laws is the connection to this topic. A reasonable qualification to the rule is that it should not apply to people itinerantly there. Now, he said it should not, and then he says it is not universally established. I’m very open about the strength of that evidence. There’s a treatise from Virginia that said a stranger visiting the country if a child is born to two strangers who do not design a permanent change in residence, it should be sufficiently obvious that the child, because he must succeed to the rights of the parents, would not himself be a citizen under that view.

But more than that, what did the Louisiana military authorities had to confront this question in the Civil War? They were confronted with the question whether they could conscript into the Union Army children born in Louisiana to French parents. And the military authorities in, and including judges, investigated the question, and they concluded that unless the parents had been domiciled at the time of birth, they could not subject those children to the right, the obligations of citizenship such as conscription.

Even just that short sort of survey suggests there’s a lot more evidence that this view on temporary visitors was contested, which is actually all I say about that question. Illegal aliens is a different beast, right? And what I show at common law, and I- I think pretty persuasively, of course I think so is that the test was never birth on soil.
It was birth on the sovereign soil to parents under the sovereign’s protection. This was why ambassadors were excluded. They were under the allegiance and protection of another sovereign. It’s why invading soldiers were e- excluded. A child born to an invading soldier was born on the king’s soil, Sir Edward Coke said, but not under the king’s protection.
What do I try to show in my scholarship? That as far as we know, there are really only two ways at common law to have become under the king’s protection as an alien. One was through a specific grant of permission to enter from the king, a safe conduct, and the other was statutory permission. So here to get rid of all these safe conducts, the need to do these safe conducts, Parliament in 1353 enacted a statute that said, “Merchant strangers may safely and surely and under our protection come and dwell in our said realm.”

So what do I show? I show that, yes, Blackstone and Coke said aliens who were not at war with the United United States… were not at war with England were under the protection of the king. But why? ‘Cause there were statutes that said that. That’s what I show. So do I have any evidence of how they would have ruled?
Do I have a silver bullet of a case where somebody came in, wasn’t at war with England, but wasn’t under the king’s protection? There was no such case as far as anybody knows. But that works both ways. They don’t have any case of that nature suggesting, yes, they would’ve been conclud- been subjects of the king.
I think that as a general matter not only am I careful in my scholarship, which is a separate question, and I don’t want to appear to be defensive, but I will take this opportunity to stick to my guns, so to speak, and suggest that a lot of these conventional wisdoms are much more contested than people often realize.
Just a quick question for the recording. What were the years of each of those sources? ‘Cause none of them sounded like they were after the ratification or directly preceding the ratification of the 14th Amendment. The temporary visitor sources or the illegal alien sources? Both. The temporary visitors Lymnfree Clarke, which everybody…
You… Ratification of the 14th Amendment? 14th Amendment. Yeah. Fair enough, but apply the same standard, right? It is often believed that the 14th Amendment adopted the common law as it was understood in the United States. So let- Who is it believed by? So the scholars on the other side and so who s- and what do they cite?
Lynch v. Clark, a New York judge in 1844. My sources come from 1860, Ludlum against Ludlum. Story’s treatise was in the 1830s. The Louisiana Military Authority was 1863, right? So again, it shows you that a- actually, like the closer it came to the 14th Amendment, the more contested it was. Which actually makes sense because the closer you are to 1868, the more international travel there is, and the more there was these questions about dual allegiances and expatriation and, we also, I talked about the British.

Let me tell you why we fought the second war with the British Right? It was partly because of birthright citizenship. Because they were impressing Americans who had naturalized in the United States. And the British view was that those seamen who had been born under the protection of the British Empire were British forever. Perpetual allegiance. And we fought a war over this to settle that question, so we rejected perpetual allegiance. Which I’m only… I’m not saying we said we also abandoned the British rule of temporary visitors. But the rule of the common law was rejected in multiple respects, and continued to be contested on this question as well as circumstances changed.
Which actually is what a good historian should be alert to. Why did it become contested in the 1800s? Because of increasing international travel and increasing dual allegiances. So anyway, thank you for giving me an opportunity to defend myself. I don’t think I’ve convinced you, but at least it will be here for posterity.
Let’s have one more question. Maybe two. Yeah, we are over, but I’ll be faster on this one. Please.

I… Oh, this should be easy for you. There’s- after those two. Yeah. I’m not as smart as the previous questioners. Please. The… I didn’t study under Mike. There… if you read some texts they’ll argue that the primary found- founding documents come from the Bible, the Old Testament specifically, and references to Moses. And the Liberty Bell, of course, has an Old Testament inscription on it. And then other au- authors quarrel with that and say, “No, that’s all wrong because the founders were influenced more by the enlightenment, and it’s the rule of reason, and God really doesn’t have a place.” So I’m giving you the two extremes. Yeah. So I wonder if you could just analyze that in great detail.
There’s… There’s no God chapter in my book. I will say the truth is they were influenced by a lot of these, right? And people had different influences. Some were more Lockean, some were more classical Republican, some were deistic, some took their Bible more seriously.
But let me just say, not as a, an expert, right? And not somebody who has carefully studied this or written this in the book. But just as an sort of observant person. A- it’s not irrelevant to the general subject. Even the Enlightenment. It’s all well and good to be Kant and believe in a categorical imperative.
It’s all… That’s all well and good when you are lecturing to masses of religious people who are already inclined to believe in things like lying is bad. So even the Enlightenment, could that have ever been accomplished without Moses and the Ten Commandments, and without the subsequent, religious teachings?
I don’t know. I do know that, in the farewell address and John Adams, you looked at what they say. It’s… The Constitution was created for a moral, I’m gonna s- do modern, and slash or. It’s not in their letters. Okay? Moder- moral and/or religious people. I do think that’s true. And I hope it’s the case that one could be moral without necessarily being religious.
But it’s much easier to have secular moral views when you have 3,000 years of religious history behind you that, presumably some of those views come from that perspective. So when we say Enlightenment, of course they were influenced by the Enlightenment, but the Enlightenment wasn’t possible without everything that came before either.
So I guess that would be my point on that without… This is what we call pontificating. Get… Oh, literally pontificating. Giving… Okay maybe that’s a little rude, but, I… This is not my expertise- … but I’m happy to pontificate in response to the question. Please, and then we’ll be done.
Yeah. Quickly. The boy band. Oh the boy band. We’ll get you there.

Thank you. So James Madison proposed an amendment regarding separation of powers that each branch could not delegate to the other branches the enumerated powers in the Constitution, and it didn’t make it through Congress, didn’t get ratified. Could you have any idea about why that didn’t happen, and is it something we should resurrect today?
This is… I talk about this non-delegation amendment in my non-delegation article, Nondelegation at the Founding. It’s very hard to know what to make of things that were not enacted as a general matter. Was it not enacted because they thought it was unnecessary because it was already implicit?
Or maybe a little bit of both. It was both unnecessary and possibly confusing and dangerous in the sense that obviously Congress passes laws, and in executing those laws, the president, the executive has to exercise some discretion. They understood there was, I think, some overlap in the nature of government functions.
The legislative, executive, and judicial power had some degree of overlap. It’s not super clear in their writings. In the nondelegation piece, I take the position more or less they thought it was superfluous and unnecessary, and Madison said that too, just “Let’s be sure about this.” But it also could just be confusing.
I-i-it’s… but even though that was rejected, all the debates for most of the several subsequent decades, everyb- we– I cannot find anybody who controverted the principle that there was a nondelegation doctrine, this idea that Congress could not delegate. The question was always, what was the line?
Have we legislated suffi- with sufficient principles? Have we answered sufficiently the important questions? That was really the debate. They didn’t really contest the nondelegation principle. But I need to revisit that nondelegation amendment. It’s an excellent question. Thank you so much for your attention and for letting me go a bit over and I hope everyone has a joyous ride in traffic getting out of the stadium area today.

So thank you. Thank you. Yes, Amazon or Cambridge or any bookstore near you, so I am told. But Cambridge is, British publisher, and I think there are little hard feelings about the revolution, so they aren’t telling me quite everything that I need to know. But it should be available anywhere.
Thank you. So please join me in thanking Professor Wurman for a delightful and engaging talk. And he probably would even prefer purchases of the book to applause, I would bet, you only have to read it. So ordinarily at the end of these events, I mention the next several ones that are coming up, but this is the end of the academic year, so I’ll see you in the fall.
Thank you. Thank you, Mike.