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 and Entail

If the earth is truly viewed as an intergenerational commons, there are serious implications for the law governing estates and the descent of lands. Indeed, fervent debates were occurring in regards to estate law during the late 18th century. Those debates focused primarily on the institutions of entail f144 and primogeniture. f145

The practice of entail was problematic from the perspective of intergenerational ethics. On the one hand, entail could be viewed as an archaic, feudal practice imposed by earlier generations, which violated later generations' sovereignty over the land. f146 Entail and primogeniture imposed potentially perpetual restraints on the alienation of land, and could result in useful agricultural land being tied up indefinitely. The institution was therefore resented by progressives sympathetic to the free market economics being advocated by Adam Smith and others. f147 In language quite suggestive to the modern ear, Smith suggested that:

"A power to dispose of estates for ever is manifestly absurd. The earth and the fulness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity. Such extension of property is quite unnatural." f148

On the other hand, entail was in some respects the quintessentially intergenerational institution; operating in tandem with the doctrine of waste, it compelled present landholders to respect the interests of future holders. The occupant of an entailed estate was expected to consume only the usufruct of the estate, to eschew waste, and to preserve the corpus intact and undamaged for later owners. It is this aspect of entail that Herbert Sloan has in mind when he describes Jefferson's intergenerational philosophy as "proposing a universal and perpetual entail." f149

Unfortunately, the benefits and protections of entail were reserved for those fortunate few who held future interests in the ancestral estates. In that sense, entail treated the earth more as an intergenerational gated community than as a intergenerational commons.

Whatever the shortcomings of the traditional entail system, is clear that the founders did not intend to abandon the principle of responsible land stewardship when they abandoned entail. The principles of stewardship were held in deep respect; the same figures who worked to abolish entail consistently used the language of waste and usufruct when explaining their intergenerational visions. But, probably due to a lack of foresight, the founders failed to develop new mechanisms for enforcing land stewardship when they dismantled the entail system.

Some of the founders were not satisfied with curtailing entail and primogeniture; they advocated more radical measures for rectifying the imbalance in access to the intergenerational commons. Paine argued that the poor had in effect been wrongfully ousted and excluded from their natural legacy for many generations. f150 He maintained that no segment of the population ever possessed a right to the "monopoly of natural inheritance" and that, "a generous man would not wish it to continue, and a just man will rejoice to see it abolished."f151 He therefore proposed that a "ground rent" be imposed upon all real property, to be collected at the time the property passed from one person to another at death, the monies to be placed into funds for each citizen when he or she reaches the age of 21, "as a compensation in part, for the loss of his or her natural inheritance, by the introduction of the system of landed property."f152 By characterizing the charge as "ground-rent" rather than as an estate tax or property tax, Paine reinforced the idea that land ownership is not really ownership at all, but rather resembles a tenancy or trust relationship.

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