CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO 09 Common law common ground and Jeffersons Principle David a. strauss THE LAW SCHOOL THE UNIVERSITY OF CHICAGO This paper can be downloaded without charge at The Social Science Research Network Electronic Paper collection http://papers.ssrn.com/paper.taf?abstract_id=224285
This paper can be downloaded without charge at: The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=224285 CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 09 Common Law, Common Ground, and Jefferson’s Principle David A. Strauss THE LAW SCHOOL THE UNIVERSITY OF CHICAGO
DRAFT 13 Apr Please do not cite or quote without permission Common Law, Common Ground, and Jeffersons Principle David A. strauss The earth belongs to the living The earth belongs in usufruct to the living, " Thomas Jefferson famously wrote from Paris in 1789, in a letter to James Madison. The question [w]hether one generation of men has a right to bind another, seems never to have been started sic] either on this or our side of the water, "even though"it is a question of such consequences as.. Ito] place among the fundamental principles of any government. "Jeffersons answer to the question, of course, was no. "We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another "1 Therefore, Jefferson said, "lelvery constitution.. and every law, should"naturally expire[l at the end of 19 years. "(Jefferson elaborately calculated, on the basis of life expectancies at the time, that a majority of people 21 and older would die within 19 years, and concluded that that was Harry n. Wyatt Professor of Law, the University of Chicago. This paper is adapted from a chapter in a book in progress on common law constitutional interpretation. I am grateful to participants in workshops at the University of Michigan, University of Pennsylvania, University of Chicago, and Yale Law Schools for their comments on various versions of this paper ILetter of Sept. 6, 1789, to James Madison, reprinted in xxx
DRAFT 13 Apr Please do not cite or quote without permission Common Law, Common Ground, and Jefferson’s Principle David A. Strauss* “The earth belongs to the living” “The earth belongs in usufruct to the living,” Thomas Jefferson famously wrote from Paris in 1789, in a letter to James Madison. “The question [w]hether one generation of men has a right to bind another, seems never to have been started [sic] either on this or our side of the water,” even though “it is a question of such consequences as . . . [to] place . . . among the fundamental principles of any government.” Jefferson’s answer to the question, of course, was no. “We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another.”1 Therefore, Jefferson said, “[e]very constitution . . . and every law,” should “naturally expire[] at the end of 19 years.” (Jefferson elaborately calculated, on the basis of life expectancies at the time, that a majority of people 21 and older would die within 19 years, and concluded that that was * Harry N. Wyatt Professor of Law, the University of Chicago. This paper is adapted from a chapter in a book in progress on common law constitutional interpretation. I am grateful to participants in workshops at the University of Michigan, University of Pennsylvania, University of Chicago, and Yale Law Schools for their comments on various versions of this paper. 1Letter of Sept. 6, 1789, to James Madison, reprinted in xxx
the best measure of a generations life span. ) If any law "be enforced longer, it is an act of force, and not of right. 3 Jeffersons argument, in some form, goes back at least to Hume's essay Of the Original Contract. It was a repeated refrain of Thomas Paines. Many others besides Jefferson made similar arguments at the time of the drafting and ratification of the Constitution; Noah Webster ridiculed Jefferson for not holding the principle more consistently Jeffersons principle remains, today, the central challenge to written constitutionalism-indeed perhaps to more than that, since much ordinary legislation is the product of earlier generations too. Jeffersons argument is the starting point for many discussions about the nature of constitutionalism. 4 But to this day it is not clear how to answer Jeffersons argument. This principle that the earth belongs to the living, and not to the dead is of very extensive application and consequences in every country Jefferson said. In our own legal culture, the questions are, among other things, why the generations who drafted the Constitution of 1787 or the Bill of Rights, or the post-Civil War amendments to the Constitution have a right to rule us today. Specifically, why do we care about their intentions which are generally thought to have some importance to current constitutional controversies? And, more pressing why do we even care about the documents they adopted, which everyone today would acknowledge to be in some sense authoritative? 2See Letter of July 12, 1816, to Samuel Kercheval, reprinted in xxx; see also Letter of Sept6,1789 3Letter of Sept 6, 1789 Eg most of the essays in Larry Alexander, ed, Constitutionalism
2 the best measure of a generation’s life span.2) If any law “be enforced longer, it is an act of force, and not of right.”3 Jefferson’s argument, in some form, goes back at least to Hume’s essay Of the Original Contract. It was a repeated refrain of Thomas Paine’s. Many others besides Jefferson made similar arguments at the time of the drafting and ratification of the Constitution; Noah Webster ridiculed Jefferson for not holding the principle more consistently. Jefferson’s principle remains, today, the central challenge to written constitutionalism—indeed perhaps to more than that, since much ordinary legislation is the product of earlier generations too. Jefferson’s argument is the starting point for many discussions about the nature of constitutionalism.4 But to this day it is not clear how to answer Jefferson’s argument. “This principle that the earth belongs to the living, and not to the dead is of very extensive application and consequences in every country,” Jefferson said. In our own legal culture, the questions are, among other things, why the generations who drafted the Constitution of 1787, or the Bill of Rights, or the post-Civil War amendments to the Constitution have a right to rule us today. Specifically, why do we care about their intentions, which are generally thought to have some importance to current constitutional controversies? And, more pressing, why do we even care about the documents they adopted, which everyone today would acknowledge to be in some sense authoritative? 2See Letter of July 12, 1816, to Samuel Kercheval, reprinted in xxx; see also Letter of Sept. 6, 1789. 3Letter of Sept. 6, 1789. 4Eg most of the essays in Larry Alexander, ed., Constitutionalism
Commands and Intergenerational Obligations In the american constitutional tradition most the answers that have been offered to these question take one of two general forms. One kind of answer asserts that the decisions of the earlier generations bind us in essentially the way that an order from a bureaucratic superior binds a subordinate. 5 Often this view seems to be not even asserted but assumed: people try to uncover what the Founding generations, or subsequent generations, thought about an issue, without explaining why that would be significant today A second, more complex kind of answer relies not so much on a simple model of superior and subordinate but rather on a conception of intergenerational identity. We owe"fidelity"to the earlier generations because we live in the same political community, extended over time, as they Just as part of being an American is acknowledging obligations of mutuality with others who live today, so part of being an American is te maintain continuity with those generations. One way we do that is to adhere, at least to some degree, to their decisions on questions of constitutional law. Many theories take this second form; some meld aspects of these two forms 6 The first kind of answer, with its simple austinian model-the Founders were the sovereign, and their commands bind us-seems at first glance just to refuse to engage Jeffersons argument. But this approach cannot be disregarded entirely. As Jefferson acknowledged, at least for a E. g. Bork: Easterbrook; cf Posner. Also"translation? Ackerman; Dworkin; Rubenfeld?; see Waldron on community extended ove time. Melding?: Amar. Tushnet Foreword
3 Commands and Intergenerational Obligations In the American constitutional tradition, most the answers that have been offered to these question take one of two general forms. One kind of answer asserts that the decisions of the earlier generations bind us in essentially the way that an order from a bureaucratic superior binds a subordinate.5 Often this view seems to be not even asserted but assumed; people try to uncover what the Founding generations, or subsequent generations, thought about an issue, without explaining why that would be significant today. A second, more complex kind of answer relies not so much on a simple model of superior and subordinate, but rather on a conception of intergenerational identity. We owe “fidelity” to the earlier generations because we live in the same political community, extended over time, as they. Just as part of being an American is acknowledging obligations of mutuality with others who live today, so part of being an American is to maintain continuity with those generations. One way we do that is to adhere, at least to some degree, to their decisions on questions of constitutional law. Many theories take this second form; some meld aspects of these two forms.6 The first kind of answer, with its simple Austinian model—the Founders were the sovereign, and their commands bind us—seems at first glance just to refuse to engage Jefferson’s argument. But this approach cannot be disregarded entirely. As Jefferson acknowledged, at least for a 5E.g. Bork; Easterbrook; cf Posner. Also “translation?” 6Ackerman; Dworkin; Rubenfeld?; see Waldron on community extended over time. Melding?: Amar. Tushnet Foreword
time a majority is entitled to rule. Any account of constitutional interpretation has to explain the undoubted binding force of a contemporaneous majoritarian decision. The second kind of answer asserting a conception of intergenerational identity is deeply woven into the way many people think about the Constitution. It speaks to something important. There is undoubtedly a human need, widely if not universally felt, to understand oneself as part of an ongoing tradition and to have a connection to earlier generations. This is often the way in which people understand themselves to be part of an ethnic group or a religious tradition. Many accounts that are implicitly offered to answer Jeffersons objection provide conceptions of what it is to be an American, conceptions that include fidelity to earlier generations decisions about the Constitution But the analogies to religious and ethnic identity ought to give us pause about using this kind of explanation for the binding character of the Constitution. People alive today in the United States, or any other reasonably heterogeneous community, will define the tradition to which they belong in different ways. Especially in view of the changes that have occurred over time, both immigration and the enfranchisement of a larger percentage of the population-changes that greatly exacerbate Jeffersons problem and that his account did not anticipate-relatively few people alive today are even descended from the people who participated in the great constitutional decisions of the past. Nearly all of us are being asked to accept decisions made by someone else's ancestors. We might choose to do so, but it is difficult to see why people should be required to identify with a tradition in that particular way
4 time a majority is entitled to rule. Any account of constitutional interpretation has to explain the undoubted binding force of a contemporaneous majoritarian decision. The second kind of answer, asserting a conception of intergenerational identity, is deeply woven into the way many people think about the Constitution. It speaks to something important. There is undoubtedly a human need, widely if not universally felt, to understand oneself as part of an ongoing tradition and to have a connection to earlier generations. This is often the way in which people understand themselves to be part of an ethnic group or a religious tradition. Many accounts that are implicitly offered to answer Jefferson’s objection provide conceptions of what it is to be an American, conceptions that include fidelity to earlier generations’ decisions about the Constitution. But the analogies to religious and ethnic identity ought to give us pause about using this kind of explanation for the binding character of the Constitution. People alive today in the United States, or any other reasonably heterogeneous community, will define the tradition to which they belong in different ways. Especially in view of the changes that have occurred over time, both immigration and the enfranchisement of a larger percentage of the population—changes that greatly exacerbate Jefferson’s problem and that his account did not anticipate—relatively few people alive today are even descended from the people who participated in the great constitutional decisions of the past. Nearly all of us are being asked to accept decisions made by someone else’s ancestors. We might choose to do so, but it is difficult to see why people should be required to identify with a tradition in that particular way