Ilan Wurman

2012 John Marshall Fellow

What is your current position?
I’m a nonresident fellow at the Stanford Constitutional Law Center, but I’m also a practicing attorney in D.C.

What inspired you to choose this career path?
I studied political philosophy and the Founding as an undergraduate, and it became very clear to me that the success of the Founders’ achievement in the Constitution depends on our ability to maintain and preserve the legal regime they created. The law and even constitutional law touches on almost all important modern issues—the separation of powers, individual liberty, the scope of government power, and the like. The law is a fertile territory for someone concerned with the success of free governments, and particularly ours. This is also what led me to write my book on originalism and the Founding.

What are you currently working on?
For now I’m focused on talking about and promoting the book, but I also do a lot of academic writing on administrative law. I think that’s really where the rubber meets the road when it comes to law, policy, and constitutional questions today. I am trying to work on some potentially creative proposals to modify administrative law doctrines to better reflect constitutional requirements but also factual realities.

How did you hear about the Claremont Institute?
I went to Claremont McKenna and so knew about the Institute from those days.

What’s your fondest memory of the Claremont Institute?
Definitely being a John Marshall Fellow. We basically got to stay at a resort for a week learning and discussing the political philosophy of the Founders. It was terrific, and highly educational and useful.

There are all sorts of educational programs out there for current and rising conservative professionals. What do you think makes the Claremont Institute’s Fellowships unique?
There may be others, but I’m not sure I know of one that focuses so heavily on the political philosophy of our Founders, and takes seriously the possibility that they were right. That takes seriously this idea that we don’t study past ideas out of historical curiosity, but because we’re interested in the search for truth.

If you could have a drink with an American Founder, or any great thinker, who would it be, why, and what would you order?
James Madison. I’d have to ask him to expand on his ideas about “liquidating” constitutional meaning. And then the title of my book is taken from one of his letters to Jefferson. I think I’d want to unpack his letter with him a bit. I guess I’d order Madeira. I hear the Founders drank tons of it when they wrapped up the Constitutional Convention.

Who was more important for their time, George Washington or Abraham Lincoln? Why?
Well this is a question that has huge constitutional implications. George Washington, as you know, made heroic efforts to construe the Constitution somewhat narrowly—he was always extra careful not to exceed his powers. Abraham Lincoln, on the other hand, was great for a different reason—pushing the limits of constitutional power (but nevertheless trying to stay within them) when confronted with the Civil War and the dissolution of the Union, which was a challenge of epic proportions. They are both great and important for these reasons, and I think each was probably right to act the way each did in the context of the respective time.

What is the greatest challenge facing the United States today?
I think it’s probably the growth of administrative and federal power. Now to be sure, it’s often forgotten that the administrative state has a constitutional foundation. If the federal government has the power to pass laws affecting all parts of the national economy, then it’s going to be administrative officials who implements those laws. They’re part of the executive branch. So really the question is often one of federal power, not of administrative power. But the administrative state is also problematic to the extent that its officials are insulated from control by the three constitutional branches or actors. When you combine this increase in federal power with this lack of control over the administrative officials exercising that power, I think that puts our free society at risk.

What is the most distinctive attribute/character of the people in the state where you grew up that you genuinely admire?
I’m from California and there was this expression at Stanford that we were like ducks on a pond—serene on the surface but paddling like crazy underneath. I never figured out if this was an insult or a compliment. But I think it’s quite complimentary. It’s OK to work hard and paddle like crazy, but I also think it’s a virtue to be calm and laid back on the surface when engaging with others. I think Californians are pretty good at that.

Now that you have written your first book, are there plans for more? If there is a book, care to share the topic?
I think my next book will be about administrative law. The conventional approaches to the modern administrative state is reflected by the formalists and textualists on the one hand and the nonoriginalists or functionalists on the other. The former group argues that the administrative state violates the Constitution by combining powers that should be separate—by combining legislative, executive, and judicial power in single hands or in single agencies (or simply in the executive branch itself). Functionalists on the other hand accept this state of affairs; they’ll say that in a world of broad delegations from Congress, there’s inevitably going to be an accumulations of these powers in the hands of the President or administration, and so the goal should be to develop a new kind of separation of powers to check and balance administrative power. They’ll also say it’s not easy to classify these powers as legislative, executive, or judicial.

I am hoping to explore the possibility of new agenda for the formalist camp—one that accepts some of the critique of the functionalists. I think there’s a difference between combining powers in single hands, and exercising a blended power. Sometimes agencies exercise a single power—like making rules—but this exercise of power partakes of multiple qualities. Sometimes it is partly legislative and partly executive. I think the formalists should perhaps accept that sometimes it won’t be easy to classify administrative power, and the focus should be on identifying those powers that are exclusively and strictly legislative, executive, or judicial in nature and then figuring out ways to give more power to the constitutional branches over those administrative functions.

What regimen do you follow when writing a book?
Writing is actually easy once you know what to say, I think! The hard part is coming up with what to say. But once you’ve been thinking and writing about a topic for a while, an outline for a book starts to take shape. Once that happens, it’s pretty easy to start writing. I like to write basically the entire draft in a rough form in a short period of time, and then refine and revise over the months (or years) that follow.