Intergenerational Justice in the United States Constitution,
The Stewardship Doctrine:

II. The Intergenerational Philosophy of the Founders and Their Contemporaries

B. Generational Sovereignty and the Land – The Earth as Tenancy-in-Common - Thomas Jefferson's Usufruct

The most succinct, systematic treatment of intergenerational principles left to us by the founders is that which was provided by Thomas Jefferson in his famous September 6,1789 letter to James Madison. f116 The letter was Jefferson's final installment in a two year correspondence with Madison on the proposed Bill of Rights. f117 Given the importance of this letter as background material for the bill of rights, f118 and its independent value as a brilliant statement of intergenerational equity principles, it serves as the natural starting point for a discussion of the founders' views on specific intergenerational issues.

Jefferson begins his letter by asserting that:

"The question [w]hether one generation of men has a right to bind another. . . is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government. . . . I set out on this ground, which I suppose to be self-evident, 'that the earth belongs in usufruct to the living' . . .." f119

Since Jefferson explicitly bases his entire philosophy regarding generational relations upon this "self-evident" principle, f120 it behooves us to examine closely the precise language employed to express the principle. Of most importance is the single word: usufruct.

The legal concept of usufruct can be traced back at least as far as ancient Roman law f121 and has changed little over the centuries. In Jefferson's time, as now, "usufruct" referred to "the right to make all the use and profit of a thing that can be made without injuring the substance of the thing itself." f122 It was a term used to describe the rights and responsibilities of tenants, trustees, or other parties temporarily entrusted with the use of an asset -- usually land. f123

Under the common law, the doctrine of usufruct is closely conjoined with the doctrine prohibiting waste, defined by Blackstone as "a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disheison of him that hath the remainder or reversion." f124 Taken together, these two doctrines provide that a tenant (or other caretaker / interest holder) is entitled to the beneficial use of the land and its fruits, but is prohibited from prejudicing future interest bearers by using the land in a way that destroys or impairs its essential character or long term productivity. f125

Jefferson's philosophy that the earth belongs in usufruct to the living at least partially reiterates the biblical/Lockean paradigm of the earth as intergenerational commons, the fruits and benefits of which should be accessible to every member of every generation. f126 He takes the position that no landholder has a natural right to control the land or dispose of it after his or her death. The land is entailed to the larger society; it reverts to the larger society upon the holder's death. Society may choose to pass the land on to beneficiaries or assignees chosen by the original landholder, but there is nothing in natural law which requires this. "By an universal law, indeed, whatever, whether fixed or moveable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it." f127

Society, as trustee of the earth, reasonably expects the natural estate to be returned undiminished at the end of each landholder's tenure. Jefferson maintains that each individual, and each generation collectively, has the obligation to pass on his, her, or its natural estate undiminished and unencumbered to later generations:

"... [N]o man can by natural right, oblige lands he occupied... to the payment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead rather than the living, which would be the reverse of our principal. What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals." f128

For Jefferson, "eating up the usufruct" means extinguishing the next generation's ability to share equitably in the benefits of a natural resource. No individual or society has authority to cause such extinction, whatever personal or collective rights they may allege. f129

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