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


113 See Schlickeisen, Rodger. "Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment," 8 Tulane Environmental Law Journal (1994) 181, 201 ("It was. . . impossible for the drafters of the Constitution to anticipate that within a mere two centuries an exploding population with incredible nature-devouring technology would fundamentally threaten the future welfare of the nation.") Accord, Jim Gardner, "Discrimination Against Future Generations: The Possibility of Constitutional Limitation," 9 ENVIRONMENTAL LAW 29 (1978) 46. But see Worster, Nature's Economy 47-50 (discussing John Bruckner's A Philosophical Survey of the Animal Creation (1768) (in which he warns that transformation of the American Wilderness was breaking the "web of life" and "the whole plan of Providence"); Rev Nicholas Collin, "An Essay on Those Inquiries in Natural Philosophy, which are at present Most Beneficial," 3 Transaction of the American Philosophical Society 24 (1793) (requesting the American Philosophical Society to support the protection of little-known birds, apparently on the verge of extinction, until naturalists could discover "what part is assigned to them in the oeconomy of nature.") Jefferson was elected into the Society on Benjamin Franklin's motion in 1786. Benjamin Franklin to Jefferson (October 8, 1786) Boyd at X: 437.


114 Burke, Bobbs-Merrill p. 108 (". . . [O]ne of the first and most leading principles on which the commonwealth and the laws are consecrated is, lest the temporary possessors and life-renters in it, unmindful of what they have received from their ancestors or of what is due to their posterity, should act as if they were the entire masters, that they should not think it among their rights to cut off the entail or commit waste on the inheritance by destroying at their pleasure the whole original fabric of society, hazarding to leave to those who come after them a ruin instead of a habitation . . ..").


115 Jonathan Shipley, A Speech Intended to Have Been Spoken by the Bishop of St Asaph . . . (1774), in Paul H. Smith, comp., English Defenders of American Freedoms, 1774-1778: Six Pamphlets Attacking British Policy (Washington, D.C., 1972), 40. Re Shipley's relations with Franklin, see Carl Van Dopren, Benjamin Franklin (New York, 1938) 413-17, 481-82, 717.


116 Jefferson to James Madison, September 6, 1789, Boyd XV, 392-98. The letter has been extensively studied by Jefferson scholars; I make no attempt to fully recapitulate that scholarship in this article. Some of the better known treatments include: Koch at 62-96 (Ch. 4 - "The Earth Belongs to the Living"); Staughton Lynd, Intellectual Origins of American Radicalism (New York, 1968) 77-86; Mayer, David N. THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON (University Press of Virginia: Charlottesville, 1994) 302-308 "The Earth Belongs to the Living"; Peterson, Merrill, "Thomas Jefferson's 'Sovereignty of the Living Generation,' Virginia Quarterly Review 52 (1976) 437-44 and "Thomas Jefferson, The Founders, and Constitutional Change," in J. Jackson Barlow et al., eds., The American Founding: Essays on the Formation of the Constitution (Westport, Conn., 1988), 275-93; Garry Wills, Inventing America: Jefferson's Declaration of Independence (Garden City, N.Y., 1978) 132-48; Stanley N. Katz, "Thomas Jefferson and the Right to Property in Revolutionary America," Journal of Law and Economics 14 (1976) 467-88, "Republicanism and the Law of Inheritance in the American Revolutionary Era," Michigan Law Review 76 (1977) 1-29; and Charles A. Miller, Jefferson and Nature: An Interpretation (Baltimore, 1988), chap. 5, esp. 161-64.


117 See also TJ to Madison, 20 Dec. 1787, 31 July, 18 Nov. 1788, 15 Mar., 28 Aug. 1789, in Boyd at 12:439-43; 13:442-43; 14:188-89, 159-61; 15:367-68. Jefferson's interest in intergenerational equity at this time was inspired in part by a conversation which took place between himself, Thomas Paine and the Marquis de LaFayette in February, 1788 - a conversation prompted by James Wilson's arguments in the Pennsylvania ratification convention disputing the need for a bill of rights. Sloan? Koch? P. 82-83.

118 Jefferson's letter was written just a few weeks before Congress passed the Bill of Rights -- approximately two years before the Bill of Rights was fully ratified by the states. See Ellis p. 123-25 (describing Jefferson's influential role as bill of rights proponent).

119 Jefferson to James Madison, September 6, 1789, supra n. 63 (emphasis in original).


120 The reference to intergenerational rights as "self-evident" recalls the Declaration of Independence: "We hold these truths to be self?evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . .." Jefferson would continue for the remainder of his life to characterize intergenerational obligations in this way. See Jefferson to Thomas Earle, September 24, 1823 ("That our Creator made the earth for the use of the living and not of the dead; . . . that one generation of men cannot foreclose or burden its use to another . . . . these are axioms so self-evident that no explanation can make them plainer").


121 See, e.g. W. Hamilton Bryson, "The Use of Roman Law in Virginia Courts," 28 American Journal of Legal History (1984): 135-46; Sloan , p. 82 ("Like a trusted family counselor, Jefferson drew up a deed of settlement ensuring future generations the right to benefit from the common property, and the means he employed . . . was familiar doctrine to eighteenth-century Anglo-American lawyers.")


122 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.

123 By using the terminology of tenancies to describe the relations between generations, Jefferson endorses a metaphor at least as old as the Old Testament. See Part I-A-2, above. In later writings, Jefferson explicates and embellishes this landlord-tenant analogy. See, e.g. TJ to John W. Eppes, Monticello, June 24, 1813, The Writings of Thomas Jefferson vol. XIII, 269-270 ("Each generation has the usufruct of the earth during the period of its continuance. . . . . [T]he case may be likened to the ordinary one of a tenant for life, who may hypothecate the land for his debts, during the continuance of his usufruct; but at his death, the reversioner (who is also for life only) receives it exonerated from all burthen.").


124 2 Blackstone, COMMENTARIES at 281.


125 The legal doctrine of usufruct/waste bears strong resemblance to Locke's prohibition against spoilage or destruction of "the fruits of nature." See Locke, Second Treatise, 31 and 46 and Part , above. It seems likely that Locke based his prohibitions, at least in part, upon these accepted legal doctrines.


126 See Part I-A-2 (on the biblical doctrine); Part I-A-5-Locke-2 (on Locke's views).


127 TJ to McPherson (13 Aug. 1813) LofA, 1291; See Koch, Jefferson and Madison, 64 (paraphrasing Jefferson's views on natural law and the land: "The portion of the earth occupied by any man ceases to be his with his death, and reverts to society.") Compare Blackstone, Commentaries, 2:3 10, 11, 12 (once a proprietor dies, "he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. . . . [Inheritance then is] clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right"); Lord Kames [Henry Hume], Essays upon Several Subjects Concerning British Antiquities . . . , 3d ed. (Edinburgh, 1763), 130 n. *, 144 ("in early times property was not much distinguished from what is now called usufruct").


128 TJ to Madison, September 6, 1789, supra n. , at (emphasis added). See also TJ to Thomas Earle, September 24, 1823, L and B 15:470-71 (declaring, "That our Creator made the earth for the use of the living and not of the dead; . . . that one generation of men cannot foreclose or burden its use to another, . . . . . [T]hese are axioms so self-evident that no explanation can make them plainer . . ."). Herbert Sloan, while apparently disapproving Jefferson's convictions, characterizes them accurately: "The earth may belong to the living, but the living enjoy only its usufruct, only its current product. That qualification is critical, for it forbids the living generation to commit waste, and thus each generation becomes a mere tenant for life, empowered only to enjoy the fruits of the estate, not to dispose of it in its entirety. . . . [E]ach generation will serve as a custodian charged with the duty of passing on intact what it receives from its predecessors. The impression such a project creates is decidedly conservative. . . His answer is to . . . husband existing resources." Sloan, Principles and Interest, 60. In his assertion that the rights of the collective society cannot exceed those of constituent individuals, Jefferson may have been influenced by Locke, Second Treatise, 135.


129 The practical problem which Jefferson addresses in this passage is actually that of long-term national debt. However, the starting point for his analysis is the idea (axiomatic to Jefferson) that the creation of natural resource inequities is illegitimate and unsupportable.

130 Jefferson was not very different from his contemporaries in this respect. The founders, who for the most part did not live their lives sheltered in cities or suburbs; tended to be more attuned than their modern counterparts to the land and its health. One commentator notes that "Like most of the 95 percent of Americans who, according to the census of 1790, lived in "rural territory," Jefferson depended directly on the land for his livelihood. . .." Miller, Charles A. Jefferson and Nature: An Interpretation (Johns Hopkins University Press, Baltimore: 1988) 13.


131 TJ to Eppes, 269-270


132 As evidence of Jefferson's special concern for long-term soil productivity, see his Commonplace book pp. 166-67 (criticizing tobacco plantations because "Little food of any kind is raised by them; so that the men and animals on these farms are badly fed and the earth is rapidly impoverished" and contrasting them with wheat farms -- praised by Jefferson for "cloathing the earth with herbage, and preserving its fertility"); and Jefferson to Lafayette, April 11, 1787, THE PORTABLE THOMAS JEFFERSON 421-23 (recommending composting practices -- and long-term agricultural leases which would reward such practices - for the improvement of the soil quality and agricultural productivity of France).



135 TJ to Madison, September 6, 1789, supra n. , at (emphasis supplied). Compare Algernon Sidney, DISCOURSES CONCERNING GOVERNMENT (London, 1698) ch III, sec 29, pp. 391-392 ("The king was never master of the soil . . . [N]o man can give what he has not. Whoever therefore will pretend, that the king has bestowed this propriety, must prove, that he had it in himself"); Clark Wolff, "Contemporary Property Rights, Lockean Provisos, . . ." 810-814 (" If the right to destroy or degrade such resources could not legitimately have been acquired or transferred, then it cannot now be legitimately claimed.")


136 See Browers, Michaelle L., "Jefferson's Land Ethic: Environmental Ideas in Notes on the State of Virginia," 21 Environmental Ethics 43 (1999) 43 (stressing "Jefferson's conception of the intimate relationship between the natural and political constitution of America and his vindication of both"); id. at 54 ("Jefferson's ethic regarding how one should behave toward property/land also embodies an ethic regarding how one should act toward nature. To spoil or waste any part of God's creation is a sin. Our covenant with nature is both an obligation to use our natural resources well and to protect it in the sense of not destroying it in a wantonly or wasteful manner. We must improve the land because our virtue as a people depends to a large extent upon the relationship between citizens and the land."); id. at 57 ("Jefferson [offers] an environmental vision that combines conservationism and a notion of responsible stewardship . . ..")


137 See Part I, infra; Sloan, Principles and Interest . . ., 75 ("Jefferson's 6 September 1789 letter said nothing about the nature of inheritance that had not been said before. The notion that the earth belonged to the living was thus anything but novel in the late eighteenth century. In fact, its roots can be traced to the Christian Middle Ages.")(citing Janet Coleman, "Property and Poverty," J.H. Burns, ed., The Cambridge History of Medieval Political Thought, c. 350-c.1450 (Cambridge, 1988), 617-25, 643-46.)


138 See Blackstone, Commentaries, 2:3 ("The earth therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the creator.") See also Thomas Paine, Agrarian Justice, 396 ("It is wrong to say that God made Rich and Poor; he made only Male and Female; and he gave them the earth for their inheritance"); Herbert Sloan, Principles and Interest, 75 (mentioning that the earth-as-commons theme played a significant role in the political theory of Locke, Sidney, Thomas Spence, William Ogilvie, William Paley, and Paine.)

139 James Madison to Jefferson, February 4, 1790, Boyd XVI, 131-34; Koch 16:147-49; Smith, I: 650, 652-53 ("Our hemisphere must be still more enlightened before many of the sublime truths which are seen thro' the medium of Philosophy, become visible to the naked eye of the ordinary Politician.")

140 Id. at 650. See also Madison to Jefferson, Feb 14, 1790, Smith, I: 653-54 (referencing "so great an idea as that explained in your letter of September.")




142 Lev. 26:14, 32, 35.

143 Thomas Paine, Agrarian Justice, 399 (emphasis in original).