Ilan Wurman is a Nonresident Fellow at the Stanford Constitutional Law Center and an attorney in Washington, D.C. He was formerly deputy general counsel on Senator Rand Paul’s US presidential campaign, associate counsel on Senator Tom Cotton’s campaign for US Senate, and a law clerk to the honorable Jerry E. Smith of the US Court of Appeals for the Fifth Circuit.
Ilan is the author of the book, A Debt against the Living: An Introduction to Originalism. He writes on administrative law and constitutional interpretation, and his work has appeared or is forthcoming in numerous law reviews, including the Stanford Law Review and the Texas Law Review, as well as in national journals, including National Affairs, The Weekly Standard, and City Journal. He graduated from Stanford Law School and from Claremont McKenna College with degrees in Government and Physics.
Dwight L. Schwab – Political and Foreign Affairs Columnist for Newsblaze.com – You have quite a prolific record for such a young man. You are a self-described “Unicorn.” What does that mean?
Author Ilan Wurman – “A Debt against the Living – An Introduction to Originalism” – (Laughter) It means I am millennial, conservative and gay. Those things don’t always go together. I think it is more common today. It certainly puts me in a unique diversity category I think.
Schwab – So you are a conservative? And you worked for Tom Cotton (U.S. Republican Senator from Arkansas).
Wurman – Yes, also Sen. Rand Paul (Republican of Kentucky). I am part conservative and part Libertarian. (Laughter) This makes me something of an odd duck.
Schwab – Do you have threatening liberal letters to string you up? (Laughter) The book is based on “originalism” and the founding of the country.
Wurman – I discuss originalism and the founding while expanding on the Second Amendment today.
Schwab – You say both Democrats and Republicans need more interpretation. Can you pontificate on that?
Wurman – It’s very easy to caricature originalism and the meaning of the Constitution. On the one hand you have the liberals who accuse the conservatives of a kind of interpretation. They will say the Second Amendment only applies to muskets. The founders couldn’t conceive of cars, the internet or automatic weapons. The Constitution is not updated and only applies to muskets. That is wrong.
The First Amendment obviously ties to the internet. The First Amendment applies to a police officer who applies a GPS device to a suspect’s car. The founders could not have imagined this. The Second Amendment does not just apply to muskets, but to modern arms.
The purpose of constitutional interpretation is not how the founders expected what they wrote to apply in their factual world, what matters is what they wrote.
Let me explain: They wrote certain standards and principles. That was, for example, freedom of speech and the right to avoid unreasonable search and seizure. That doesn’t mean there are not reasonable limits on these rights. The Second Amendments leaves open the interpretation of reasonable limits. The hard question is where the line is drawn.
Obviously bazookas have to be regulated, but what about individual weapons to protect the citizen? Where do semi-automatics fall is this situation? The Supreme Court does not like to take such cases. Both sides often argue over their side of this argument. What is particularly upsetting to me is how both sides feel the need to bring the Constitution into the fray. The Constitution generally allows things to be played out in democratic politics.
Schwab – All that being said, don’t you feel the far-left has a larger motivation in their agenda? Lately it is integrating the Boy Scouts, tearing down Confederate statues. Are they not trying to destroy the moral fiber of America?
Wurman – There is the distinction by liberals to allow extreme cases to drive their core defense. What do the First and Second Amendment have in common to illustrate this?
Some of the cases that come before us as a people test the very boundaries of a free society. The First Amendment makes us sickened when Nazis march through Skokie. We put up with the white supremacists in Charlottesville. If we get rid of their freedoms in these extreme cases, where does it end? This exists for the non-extreme situations also. That is the First Amendment.
The Second Amendment is much the same. Sometimes we are going to have to put up with gun violence. We will never get rid of murder and violence. But there is a reason these freedoms are protected. When you think about it, the Constitution doesn’t require much of anything. The most essential was the right to be protected. We don’t have to put up with this extreme violence with what our general rules are.
Schwab – There was a councilman from Chicago on television the other night stressing more gun restrictions in his city. Chicago is akin to Dodge City with its mass of shootings as one of America’s strictest cities for gun regulation. Assuming Donald Trump wins a second term, the Supreme Court will most like see at least two vacancies conceivably filled by conservative justices. Where do you see those court rulings going on the topic of gun violence down the road in regard to the Second Amendment?
Wurman – The Supreme Court does not like to take these cases as I said. When it comes to bazookas, there is a line. There will always be this fuzzy side of the situation. The more uniform the Court becomes, the more they will try to draw the line. It is not clear that they will because these are hard cases. I am not sure the Court will pick up more of these cases, even as they become more conservative.
As for Chicago, individuals have a fundamental right for self-preservation. The young woman walking down the streets of Chicago has the same right as the politicians that oppose those very guns for self-preservation. That is the key natural right principle. And it stems from the Second Amendment. That doesn’t mean there will not be restrictions, going back to bazookas, but we have to keep in mind that fundamental principle.
Schwab – Where do we see your career going at this point? You have experienced Tom Cotton the conservative and Rand Paul the Libertarian. What next?
Wurman – (Laughter) I write on administrative law. Many conservatives think the administrative state violates the Constitution. There are unaccountable administrative agents. Much of my writing is on that theme and I hope to continue it. I am pretty young, my first book is doing well and I need to get the word out.
Schwab – What will be your next book?
Wurman – It will probably be a book on the executive branch. I think down the line, a book on each constitutional branch of government. The theme is more control over modern administrative agencies. Bring constitutional powers back into the administrative state.
The administrative state is not going away. We need better checks and balances on it. That’s probably my next book.
Schwab – The title of your new book is A Debt against the Living. Best of luck to you Ilan.