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

Footnotes page 1


Introduction

1  Burke, Edmund, Reflections on the Revolution in France (Bobbs-Merrills: Indianapolis, 1955) 38. Compare Christopher Lasch, THE CULTURE OF NARCISSISM 30 (1979) ("We are fast losing the sense of historical continuity, the sense of belonging to a succession of generations originating in the past and stretching into the future.")


2  "We have not invented or discovered the problem of intergenerational justice, as much as we have rediscovered it. A concern with achieving justice in an intergenerational community has informed the writings of political philosophers since the biblical era. [But a] remarkable faith in progress, engendered by the industrial revolution, obscured the problem of intergenerational justice throughout much of the 19th and early 20th centuries." Bruce Auerbach, UNTO THE THOUSANDTH GENERATION: CONCEPTUALIZING INTERGENERATIONAL JUSTICE (Peter Lang, New York, 1995), preface, xiii-xiv.


Greece and Rome

3  Plato, The Laws, (Book XI, 923), 464.?


4  Plato, The Laws, (Book IV, 707-708) 464-465. At least one scholar traces Plato's intergenerational concern to his conception of eros: see Hartmann, Nicolai. "Love of the Remote," in Ernest Partridge, ed., RESPONSIBILITY TO FUTURE GENERATIONS (Buffalo, NY, Prometheus Books: 1981) 305-308 ("In Plato's 'eros' . . . the passion is a personal commitment . . . to a work that transcends the present for the uncertain future, for sacrifice not just to present others but to the remote. The strength in the Platonic eros is the ethos of love, not just of one's neighbor, but of the one who is to be, a love which cannot be returned").


5  The Athenian Oath, from "Frederickson, H. George, "Can Public Officials Correctly Be Said to Have Obligations to Future Generations?," 54 PUB. ADMIN. REV. 457, 457 (1994).


6  Id.


7  Emphyteusis denoted a perpetual lease of lands and tenements in consideration of annual rent and of improvements. The form included the legal power to cultivate the land, on condition of cultivating it properly, and paying a fixed sum (canon, pensio, reditus) to the owner (dominus -- in some cases the government) at fixed times. The landholder was bound to pay all the public charges and burdens which might fall on the land, and not to deteriorate it.


8  Usufruct -- "the right to make all the use and profit of a thing that can be made without injuring the substance of the thing itself. . . . This estate regularly lasted for life." Sir Robert Chambers, A Course of Lectures on the English Law, Delivered at the University of Oxford, 1767-1773, ed. Thomas M. Curley, 2 vols. [Madison, Wis., 1986], 2:85. Jefferson would later invoke this Roman model of landholding with his famous proclamation that "the earth belongs in usufruct to the living." Jefferson to James Madison, September 6, 1789, in Boyd XV, 392-98.


9  Pipes, Richard. PROPERTY AND FREEDOM: THE STORY OF HOW THROUGH THE CENTURIES PRIVATE OWNERSHIP HAS PROMOTED LIBERTY AND THE RULE OF LAW (Alfred A. Knopf, New York: 1999) 194 ("it was either leased or colonized but, being state property, it could not be fully owned. Outside Italy, even Roman citizens could not hold outright title to the land and had to pay tax or tributum (both on land and a capitation tax) as a reminder that the state had the ultimate claim . . ..")


10  Institutes of Justinian, J. INST., 1.2.1, 2.1.1-2.1.6 (P. Birks & G. McLeod trans. 1987). See also Cicero, "De Officiis I" (On Duty), in SELECTED WORKS (Walter J. Black, Inc.: 1948) 342 ("Shut no man off from running water"); id. at 328 (". . . common possessions should be used for the common interest, and only private property for the individual's interest").


11  See, e.g., Jefferson to Richard Henry Lee (May 8, 1825) in THE WRITINGS OF THOMAS JEFFERSON 16: 118-19 (of the Declaration of Independence -- "All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, in printed essays, or in the elementary books of public right, as Aristotle, Cicero, . . . etc.")


12  See Augustine, De Civ. Dei (City of God) II, 21 (citing Cicero). Compare James Madison, The Federalist No. 10, ed. John C. Hamilton (Philadelphia: 1864) 104, (identifying 'factions' as a problem and defining a 'faction' as "a number of citizens . . . united and actuated by some common impulse of passion, or of interest, adverse to . . . the permanent and aggregate interests of the community.")


The Old Testament

13  Gen. 17: 9-14 ("[E]very male throughout your generations . . . shall be circumcised. So my Covenant shall be in your flesh an everlasting Covenant"). See also Deuteronomy 7:9 ("Know therefore that the Lord your God is God, the faithful God who keeps covenant and steadfast love with those who love him and keep his commandments, to a thousand generations....")(emphasis supplied).
Auerbach, p. 27.

14 See also Green, Ronald, "Future Generations, Obligations to" in The Westminster Dictionary of Christian Ethics, James F. Childress and John Macquarrie, eds, (Philadelphia: The Westminster Press, 1986) 242, 243 (emphasizing that in the biblical tradition, "God's relationship to humankind is typically viewed as one spanning generations").

15 Gen. 1:31 ("God saw all that he had made, and it was very good"); Gen. 2:15 (King James trans.) ("And the Lord God took man, and put him into the garden of Eden to dress it and to keep it"); id. (New English trans.) ("to till it and care for it");


16  Gen. 9:8-10 ("Then God said to Noah and to his sons with him: 'I now establish my covenant with you and with your descendants after you and with every living creature that was with you - the birds, the livestock, and all the wild animals - every living creature on earth.' ");


17  Deuteronomy 22, 6-7.


18  Deuteronomy 20,19-20. See Auerbach, UNTO THE THOUSANDTH GENERATION, 32 ("[T]hese prohibitions and injunctions indicate a concern with the impact of human actions on the natural environment, which is comparable in many ways to contemporary concern over the use of defoliants in war and with the impact of modern farming techniques on soil erosion. The Biblical writers quite clearly were concerned with ensuring practices which were compatible with the long-term prosperity of their community."


19  Lev. 25: 23, 34 (New International Trans.). Young's Literal Translation reads "and the land is not sold - to extinction . . ..") This would appear to be one of the earliest uses of the landlord-tenant analogy to explain the relation between earlier and later generations. See also Pipes, PROPERTY AND FREEDOM 88-89 ("in all primitive societies and most non-Western societies in general, land was not treated as a commodity and hence was not truly property . . . Land was universally considered a resource that one could exploit exclusively but not own and sell). Notably, the biblical prohibition on perpetual sale of real property did not apply to some improvements, such as houses within walled cities. Lev. 25:29-31. Compare Thomas Paine, Agrarian Justice (1796), in The Complete Works of Thomas Paine 398-99, ed. Foner (1945) (" it is the value of the improvement only, and not the earth itself, that is individual property").


20 Leviticus 25: 2-5; Exodus 23: 10-11.


21 Lev 26: 3-35 ("But if ye will not hearken unto me, and will not do all these commandments . . . your land shall not yield her increase, neither shall the trees of the land yield their fruits. . . . And I will scatter you among the heathen, and will draw out a sword after you: and your land shall be desolate, and your cities waste. Then shall the land enjoy her sabbaths, as long as it lieth desolate, and ye be in your enemies land; even then shall the land rest, and enjoy her sabbaths.") See also Jer. 2:7 ("I brought you into a fertile land to eat its fruit and rich produce. But you came and defiled my land and made my inheritance detestable").


22  See Lev. 25: 9-16 (". . . And ye shall hallow the fiftieth year . . . it shall be a jubile unto you; and ye shall return every man unto his possession, and ye shall return every man unto his family. . . .In the year of this jubile ye shall return every man unto his possession); See also I Kings 21: 2,3; Micah 2: 1-4; Ezekiel 46: 16-18.


23  Numbers 36:7,9 ("So shall not the inheritance of the children of Israel remove from tribe to tribe: for every one of the children of Israel shall keep himself to the inheritance of the tribe of his fathers . . . Neither shall the inheritance remove from one tribe to another tribe; but every one of the tribes of the children of Israel shall keep himself to his own inheritance").


24  Exodus 20:2-6 ("I the Lord your God am a jealous God, visiting the iniquity of the fathers upon the children to the third and fourth generation of those who hate me, but showing steadfast love to thousands of those who love me and keep my commandments.") See also Exodus 34:6-7).


25  Auerbach, UNTO THE THOUSANDTH GENERATION at 34-35.


26  Ezekiel 18: 19-20. The sentiment would be echoed much later in the United States Constitution's prohibitions against nobility and the legal doctrine of corrupted blood. See Parts III - B and C.


27  John Quincy Adams, "Inaugural Address," (Friday, March 4, 1825); JQA, "The Jubilee of the Constitution," (New York, April 30, 1839 before the New York Historical Society). In the former speech, Adams trades closely on the theme of the jubilee system, discussing the constitution itself as an entailed inheritance: "We now receive it [our constitutional system] as a precious inheritance from those to whom we are indebted for its establishment, doubly bound . . . to transmit the same unimpaired to the succeeding generation."

footnote 28?