Ilan Wurman

Bio: Ilan Wurman is an academic researcher from Arizona State University. The author has contributed to research in topics: Constitution & Supreme court. The author has an hindex of 5, co-authored 17 publications receiving 67 citations. Previous affiliations of Ilan Wurman include West Virginia University College of Law & Brigham Young University.

A Debt Against the Living: An Introduction to Originalism

Abstract: Thomas Jefferson famously wrote that the earth belongs to the living. His letter to James Madison is often quoted for the proposition that we should not be bound to the 'dead hand of the past', suggesting that the Constitution should instead be interpreted as a living, breathing document. Less well-known is Madison's response, in which he said the improvements made by the dead - including the US Constitution - form a debt against the living, who benefit from them. In this illuminating book, Ilan Wurman introduces Madison's concept of originalism to a new generation and shows how it has shaped the US Supreme Court in ways that are expected to continue following the death of Justice Antonin Scalia, one of the theory's leading proponents. It should be read by anyone seeking a better understanding of originalism and its ongoing influence on the constitutional jurisprudence of the Supreme Court.

The Second Founding: An Introduction to the Fourteenth Amendment

Abstract: In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.

How to Permit Your Mammoth: Some Legal Implications of 'De-Extinction'

Abstract: Extracting DNA from ancient specimens and using cloning technology to resurrect extinct species has become a staple plot device of wildly popular science fiction novels and films since Jurassic Park. But the prospect that extinct animals may live again no longer belongs solely to the realm of science fiction. “De-extinction” is coming closer to reality, as scientists now are experimenting with a number of methods for resurrecting extinct species. No method will bring back the dinosaurs; it has been too long since the Jurassic era for their DNA to survive. It may well be possible to “resurrect” more recently extinct species, however, such as the Pyrenean ibex, the passenger pigeon, or possibly even the awe-inspiring woolly mammoth, in the not too distant future. While some discussion of these exciting developments has appeared in the scientific and popular press, most articles focus on technical and ethical issues: can we do this, and should we? For purposes of this Article, we treat de-extinction, in some form, as a scientifically reasonable future prospect whose legal implications should be considered in a practical manner. For the most part, we assume that if de-extinction can feasibly be accomplished, someone will undertake the effort if for no other reason than because it would be irresistibly thrilling to do so. Jurassic Park itself may be unattainable, but a somewhat more plausible Pleistocene Park, populated with mammoths and aurochs, would generate nearly as much popular excitement. Other motivations for pursuing de-extinction might include the reintroduction of “keystone” species for purposes of reviving whole ecosystems, with substantial environmental benefits. Therefore, this Article explores the implications of de-extinction under existing law. Part I introduces the current science of de-extinction and the different methods its proponents are pursuing. The methods are worth reviewing in some detail, since the implications of those methods are significant for legal outcomes. Part II discusses the ESA, whether it would apply to de-extinct species, and how it should be applied. Part III addresses permitting and evaluation of environmental impacts under NEPA for projects to reintroduce de-extinct species into the wild, by analogy to EISs for reintroductions of living but locally extirpated species into regions that they formerly inhabited and EISs for releases into the environment of genetically modified organisms (GMOs). Part IV explores the regulation of resurrected species as GMOs, given that two of the three de-extinction methods being pursued would result in GMOs. Part V considers the patentability of such GMOs. Part VI summarizes our conclusions.

Drug Testing Welfare Recipients as a Constitutional Condition

Abstract: In the past few years, there has been a flurry of legislative proposals in the states to require welfare recipients to submit to suspicionless drug testing. A federal district court has recently granted a preliminary injunction enjoining such a program in Florida on the grounds that the plaintiffs were likely to succeed on the merits of a Fourth Amendment claim. Only the Sixth Circuit has otherwise addressed the question, with the appellate panel disagreeing with a trial judge who also granted a preliminary injunction on Fourth Amendment grounds, and the full Circuit upholding the trial judge by an equally divided, six-to-six vote. The constitutionality of these legislative proposals is, therefore, very much open to question. All the literature written on the question of suspicionless drug testing of welfare recipients have come to the same conclusion that such testing violates the Fourth Amendment. This Note challenges the prior and current scholarship on suspicionless drug testing of welfare recipients, and the Supreme Court’s special needs doctrine more broadly, by applying the doctrine of unconstitutional conditions to the cases. It contends that the Fourth Amendment’s special needs doctrine is insufficient, because conditioning welfare benefits on drug testing may fail the special needs test but still be a constitutional condition. This Note argues that, where the unconstitutional doctrine could otherwise apply, the doctrine is in fact necessary to apply; that doing so resolves certain contradictions and fictions that currently exist in the Fourth Amendment doctrine, while better explaining some of the Fourth Amendment cases; and that conditioning welfare on drug testing is more likely to be constitutional under the unconstitutional conditions doctrine than under the current Fourth Amendment approach, which would instead stop the inquiry with the special needs doctrine. More specifically, the Note concludes that if there is a connection between drug use and decreased productivity or increased unemployment, absenteeism, and occupational injury, then drug testing appears a 'germane' condition to the receipt of welfare benefits and thus constitutional. If there is no such connection, however, then we might begin to question why drugs are illegal at all. Update: A discussion on the recent Eleventh Circuit decision in Lebron v. Secretary, Florida Department of Children and Families has been added. The Note argues that the decision did not properly apply the doctrine of unconstitutional conditions.

The Original Understanding of Original Intent

Abstract: When interpreting the Constitution, judges and commentators often invoke the “original intent of the framers” in support of their positions. Many claim that such an interpretive strategy is not only currently desirable, but indeed was the expectation of the Constitution’s drafters and early interpreters. In this Article, Professor Powell examines the historical validity of the claim that the framers of the Constitution expected future interpreters to seek the meaning of the document in the framers’ intent. He first examines the various cultural traditions that influenced legal interpretation at the time of the Constitution’s birth. Turning to the history of the Constitution’s framing, ratification, and early interpretation, Professor Powell argues that although early constitutional discourse did contain references to “original intention” and the “intent of the framers,” the meaning of such terms was markedly different from their current usage. He concludes that modern resort to the “intent of the framers” can gain no support from the assertion that such was the framers’ expectation, for the framers themselves did not believe such an interpretive strategy to be appropriate.

Pathways to de‐extinction: how close can we get to resurrection of an extinct species?

Abstract: Summary De-extinction, the idea that extinct species might soon be resurrected, receives considerable attention in both popular and scientific literature, in particular with regard to its potential ecological and ethical consequences. Here, I review the three main pathways that are being considered at present for de-extinction: back-breeding, cloning via somatic cell nuclear transfer (SCNT) and genetic engineering. I present the state of the art in each pathway and discuss the limitations of each approach as a mechanism to resurrect extinct species. Back-breeding aims to concentrate ancestral traits that persist within a population into a single individual using selective breeding. In back-breeding, ancestral phenotypes may be resurrected after many generations, but the genes that underlie these phenotypes may differ from those that were present in the extinct species. Cloning aims to create genetically identical copies of an extinct species from preserved somatic cells. These somatic cells are fused with egg cells from a closely related and living donor species, which causes cellular reprogramming and embryogenesis, a scientific process known as SCNT. The developing embryo is then brought to term within a surrogate host. Because biological remains degrade post-mortem, cloning of long-dead organisms is not likely to be feasible. Genetic engineering aims to edit the genome sequence within cells of living species so that these genome sequences closely resemble that of a closely related extinct species. This approach draws on recent advances in both ancient DNA and genome editing technologies and is a particularly promising approach to de-extinction. After the genome of a living cell is edited, that living cell can then be used for SCNT. Because the phenotype of an organism is the consequence of the interaction between its genotype and the environment in which it develops and lives, even species with cloned nuclear genomes will not be exact copies of the extinct species on which they are modelled. We should therefore consider de-extinction as a means to create ecological proxies for extinct species. A lay summary is available for this article.

The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy

Abstract: This paperback edition of The Uncertain Crusade has a new preface by the author. Copublished with the Hamilton Press. Index.