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


Philosophy of the Founders

90 See THE DECLARATION OF INDEPENDENCE, July 4, 1776 ("When . . . it becomes necessary for one people to dissolve the political bands which have connected them with another . . . a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.")

91 "A New Order for the Ages," United States national motto, adopted .

92 See Gardner, "Discrimination Against Future Generations . . . ," 9 ENVIRONMENTAL LAW 35 ("A close examination of the debates of the Federal Convention of 1787 reveals that the draftsmen of the Constitution invariably took the view that their generation had an obligation to protect the well-being of future generations"); H. Commager, "America in Its Third Century - What Prospects?" (address before the National Town Meeting at the John F. Kennedy Center for the Performing Arts, Washington, D.C., March 17, 1976) (Transcript on file at the Environmental Law office, The Lewis and Clark Law School) 7-8 ("[W]hat was uppermost in the minds of the founding fathers all the time [was a] sense of fiduciary obligation to posterity. Washington never stopped talking about it. Jefferson spoke of our descendants and thousands and thousands of generations. Tom Paine spoke about it, they all did.")


93 George Mason to George Washington, April 2, 1776, The Papers of George Mason 1:435

94 Paine Dover P. 22


95 Thomas Paine, COMMON SENSE, January, 1776 (Dover Publications, New York: 1997)18?. See Thomas Jefferson, Notes on Virginia, query XIII (praising Common Sense as the first pamphlet to introduce the idea of independence and a new form of government to the people of the American colonies.) See also Ellis p. 58 (noting that, after its publication in January, 1776, Common Sense "swept through the colonies like a firestorm.")


97 Id. at I:422

98 THE PAPERS OF GEORGE MASON, ed. Robert A.Rutland (Chapel Hill, NC: University of North Carolina Press, 1970) 3:892?3.

99 See James Wilson's opening address to the Pennsylvania ratifying convention (Nov. 24, 1787) (remarking that the effects of the constitution would extend "to innumerable States yet unformed, and to myriads of citizens who in future ages shall inhabit the vast uncultivated regions of the continent"); Alexander Hamilton, New York Convention, June, 1788 (seeking to deflect charges of corruption and self-dealing on the part of the drafters: "What reasonable man, for the precarious enjoyment of rank and power, would establish a system, which would reduce his nearest friends and his posterity to slavery and ruin?"); David Ramsey, Columbian Herald, Charleston, South Carolina, June 5, 1788 ("To pull down one form of government without substituting something in its place that would answer the great ends for which men enter into society, would have been to trifle with posterity").


100 See Agrippa [James Winthrop] X Mass Gazette (Boston) Jan. 1, 1788 (opposing the proposed constitution due to the absence of a bill of rights, and warning: "By adopting the form proposed by the convention, you will have the derision of foreigners, internal misery, and the anathemas of posterity. By amending the present confederation, and granting limited powers to Congress, you secure the admiration of strangers, internal happiness, and the blessings and prosperity of all succeeding generations.)" (emphasis supplied). See also Nathaniel Barrell to George Thatcher, Boston (January 15, 1788) ("I see it pregnant with the fate of our libertys and if I should not live to feel its baneful effects, I see it entails wretchedness on my posterity").


101 David Hume, Enquiries, Ed. by Selby, Bigge and Nidditch, 535.

102 Immanuel Kant, Idea for a Universal History (1784), 8th Thesis, in KANT'S POLITICAL WRITINGS 5, ed. H Reiss, trans. H.B. Nisbet (Cambridge: Cambridge University Press 1970). See William Doyle, The Old European Order, 1660-1800, 2d ed. (Oxford, 1992) 215 ("By the mid-1780's, Kant, in distant Konigsberg, was the only indisputable literary and intellectual giant left in Europe"). See also Annette Baier, "For the Sake of Future Generations" in Earthbound: New Introductory Essays in Environmental Ethics, ed. by Tom Regan (Philadelphia: 1984) 216-217 (explaining that Kant's philosophy judges the acceptability of proposed policies and conduct by the consequences over time of universal conformity to the policy. "[T]o discern our duty to anybody, we must in a sense think of everybody, future persons included, according to Kant's test. . . . Any practice like dumping toxic wastes where they will poison soil, air, or water, seems forbidden by Kant's test - we cannot conceive of a system of nature in which all humans regularly do this, yet survive as a species.")


103 Edmund Burke, Reflections on the Revolution . . . 28 ("No experience has taught us that in any other course or method than that of an hereditary crown [can our liberties] be regularly perpetuated and preserved sacred as our hereditary right.") See also id. at 29 ([The people of England} look upon the legal hereditary succession of their crown as among their rights, not as among their wrongs . . . ; as a security for their liberty, not as a badge of servitude.")


104 E. Burke, Reflections on the Revolution in France 110 (Dolphin ed. 1961)

105 Id. at 108-110.

106 Tom Paine's The Rights of Man (1791) in Thomas Paine: Collected Writings, ed. Eric Foner (New York, 1995).


107 Thomas Paine, The Rights of Man at 439. Paine was perhaps indulging in rhetorical excess. Both he and Burke believed themselves to be vindicating the interests of "later" generations. Paine stressed the fact that 'earlier' generations of French had unfairly handicapped the 'later' generation made up of his own contemporaries. Burke, by contrast, was concerned that the 'earlier' generation made up of his own contemporaries ought not jeopardize the future of still later generations who had not yet been born by creating chaos and disorder. Their difference of opinion was essentially as to the scope of the present generation's obligation to honor the obligations and arrangements established by earlier generations. To defer to readily to the misguided wishes of our ancestors will sometimes, as Paine warned, work injustice upon our descendants. But to hastily or thoughtlessly cast our ancestors' plans aside may also work an injustice upon our descendants. To maintain the proper balance between the claims of past and future is a solemn and sometimes difficult responsibility. The dispute between Paine and Burke also highlights another important principle: an intergenerational ethics consistently applied tends to both empower and disempower the generation which employs it. It empowers the employing generation to disregard earlier generations' self-serving and overreaching policies and decisions, but it simultaneously disempowers the employing generation from implementing or imposing such policies itself.

108 The commerce of ideas between Paris and the United States was brisk. Jefferson was serving as United States ambassador to France during the years - , and he communicated regularly with both Lafayette and Paine (both in Paris), and later with Madison, on the topic of generational rights. See Smith, The Republic of Letters, 631, n. 35.

109 Lafayette, "Draft of a Declaration of Rights," Boyd, 15:230-31. See also Louis-Sébastien Mercier, "Génération nouvell," in Tableau des empires, ou otios sur les gouvernements, 4 vols. (Amsterdam, 1788) 3:63 (suggesting that every generation -- defined as thirty years -- should be empowered to recreate its government by rewriting the constitution); J.J. Rousseau, The Social Contract, ch. 4(1755)12 ("Even if each person could alienate himself, he could not alienate his children; they are born free men; their liberty belongs to them, and no one has a right to dispose of it except themselves. . . . In order, then, that an arbitrary government might be legitimate, it would be necessary that the people in each generation should have the option of accepting or rejecting it"); Marquis de Condorcet, Oeuvres de Condorcet, A Condorcet O'Connor and Francois Arago, eds. (Paris, 1847) 10: 39-40 (also insisting on periodic constitutional reform as a matter of intergenerational right).


110 Rapport fait au comité des droits féodaux . . . par M. Merlin (4 Sept. 1789) in Procès Verbal de l'Assemblée Nationale 5 (27 Aug-18 Sept. 1789) 4:24-28 (cited in Herbert Sloan, Principles and Interest 69.)


111 See Bruce Johansen, , Forgotten Founders: Benjamin Franklin, the Iroquois and the Rationale for the American Revolution (Common Press: 1982); Donald Grinde, The Iroquois and the Founding of the American Nation (1979).


112 Wampum 3, 28, or 57. The Iroquois were also well-known to LaFayette from his days as a volunteer in the American revolutionary cause. It is not inconceivable that the Iroquois' Law of Seven Generations may have informed the dialogue on intergenerational rights between LaFayette, Paine, and Jefferson.