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

Footnotes 7: Corruption of Blood

263 U.S. Const., Art. III, Sec. 3. See also PENNSYLVANIA CONST., sec. 19 ("no attainder shall work corruption of blood prior except during the life of the offender, for forfeiture of estate to the commonwealth"); INDIANA CONST., sec. 30 (prohibiting corruption of blood and forfeiture of estate).

264 See TERMES DE LA LEY 125, First American Ed. (1812) ("Corruption of blood is, when anyone is attainted of felony or treason, then his blood is said to be corrupt; by means wehreof neither his children, nor any of his blood, can be heirs to him, or to any other ancestor, for that they ought to claim by him.")

265 Ezekiel 18: 19-20

266 U.S. CONST., Art. I, sec. 9, cls. 1, 4 (1789). See David Brion Davis, "The Problem of Slavery," at http://www.yale.edu/glc/ (noting that the legislators of slavery promoted "a model of hereditary dishonor and powerlessness-much as wielders of power promoted the opposite ideal model of hereditary kingship"). In fairness to the framers, they were far from original in their hypocrisy on this point; ancient Rome's Justinian Institutes had recognized slavery as the single institution contrary to the law of nature which was nevertheless sanctioned by the law of nations

267 See, e.g. "Argument of John Quincy Adams Before the Supreme Court of the United States in the case of the United States, Appellants, vs. Cinque, and others, Africans, captured in the schooner Amistad (S.W. Benedict: 1841) (characterizing slavery as "perpetual, hereditary servitude.") Significantly, the 13th Amendment explicitly allows for "involuntary servitude" when based upon individual misconduct rather than heredity.

268 U.S. CONST, Amendment 13, sec. 1 (Dec. 18, 1865) ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States . . . "); id. at Amendment 14, sec. 1 (July 28, 1868) (". . . nor shall any State deprive any person of life, liberty, or property,without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

269 U.S. CONST., Amend. V.

270 See Thomas Paine, at ("The rights of men in society . . . are descendable . . . [but] Wrongs cannot have a legal descent").

271 TJ to Madison, September 6, 1789, supra n. , at .

272 See Henry George, PROGRESS AND POVERTY at 362-63 (advocating the nationalization of all land and natural resources without compensation, and noting that "The anti-slavery movement in the United States commenced with talk of compensating owners, but when four millions of slaves were emancipated, the owners got no compensation, nor did they clamor for any.") George's employment of the emancipation precedent might seem extreme, but it would not be extreme - indeed, it would be supremely reasonable - to begin recognizing a constitutionally implied easement in all natural resource titles, an easement which would require that all natural property use be sustainable, and beneficial to the present and future public interest. The recognition of such basic responsibilities, which may previously have gone unrecognized, would require compensation no more than did emancipation.

273 See In re Griffits, 413 U.S. 717 (1973); United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n. 4 (1938); L. Tribe AMERICAN CONSTITUTIONAL LAW §8-7 (1978)

274 See Wright, "The Interests of Posterity in the Constitutional Scheme," 59 Cincinnati L. R. at 122-123; Ely, Democracy and Distrust at 82, 83, 87.

275 See Wright, "The Interests of Posterity . . .," 59 Cincinnati L. R. at 113 (recommending protection of posterity's interests via the 14th Amendment: "Recently . . . we have begun to appreciate the advantages of despoiling our neighbors in time, rather than in space. One of the critical advantages is the limited political resistance that tends to arise from young or future persons"); Rodger Schlickeisen, "Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment," 8 TULANE ENVIRONMENTAL LAW JOURNAL 181, 182 (1994) ("Relying on ordinary statutes alone [to balance and protect the interests of future generations] is insufficient because normal legislative processes are systemically biased in favor of current benefits as opposed to the long-term future"); William Boyer, "Environmental Rights: Legal Standing for Future Generations" 3-4 (Paper presented at Fifteenth World Conference of the World Futures Studies Federation, Brisbane, Australia, Sep., 1997) ("Established rules of what has been called democratic government are based on constituencies that predetermine that the future will be discounted and future generations will be exploited. . . . any constituency without power loses out. . . . [F]uture generations are never present, and no penalty results from their exploitation. Pollution, resource depletion, and debt are conveniently passed on. Fly now, let future generations pay later. This is the effect of 'constituency democracy'. Enforced ecological sustainability is needed, tied to political and legal standing for future generations. Then all rights available now are available to future generations. Anything less constitutes structural obsolescence and generational exploitation"); Allen, ,720 ("When assessing the environmental impact of a proposed action, such as building a hazardous waste facility, we do so from the perspective of our generation, focusing on the externalities that affect us, while disregarding the impacts that may occur in 50 or 100 years.")

276 James Madison, The Federalist No.10, 104-112 John C. Hamilton (ed.), (Philadelphia, 1864).

277 Id. at (emphasis supplied).

278 Id. at (anticipating that those elected would be those "whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.")(emphasis supplied).

279 See Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

280 See James Hart Ely, DEMOCRACY AND DISCONTENT at 83 (noting that "nonresidents are a paradigmatically powerless class politically.")

281 See Wright, "The Interests of Posterity . . . " 59 CINCINNATI L. R. at 123.

282 Roe v. Wade, 410 U.S. 113, 157-158 (1973).

283 See Jim Gardner, "Discrimination Against Future Generations: The Possibility of Constitutional Limitation," 9 ENVIRONMENTAL LAW 29, 49 (1978) (arguing that Roe's analysis and holding are irrelevant to the existence of a constitutional principle of intergenerational fairness because the principle "rests primarily on the proceedings of the Federal Convention of 1787").

284 Id. "[Roe] vindicates a potential mother's constitutional right to procure an abortion against a state-defined "right to life" on the part of a conceived, but unborn, fetus. [A stewardship doctrine] would vindicate the rights of an overall class composed of members of future generations to be free from certain categories of environmental discrimination which were not foreseen by the draftsmen of the Constitution."

285 See Delgado, supra, at 120 n. 136 and accompanying text (noting that with Brown v. Board of Education, 347 U.S. 483 (1954) and subsequent cases, the courts have considerably surpassed the colonial and reconstruction expectations.")