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

II. The Intergenerational Philosophy of the Founders and Their Contemporaries

D Generational Sovereignty and the Laws -- The Right of Re-Constitution


Perhaps the most fundamental of the several inalienable rights recognized by the founders was the right of re-constitution. f174 That right was understood to rest at the foundation of consensual government; its recognition was deemed essential to the security of all other rights. The Declaration of Independence contains the most famous formulation of the right:

"[T]o secure [inalienable] rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . . . [W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government . . .." f175

Operating for the most part out of a contractarian tradition of political philosophy, the founders believed that the legitimacy of a government derived from the consent of its citizens. f176 If and when such consent should no longer be forthcoming, a legitimate political system must allow for its own expiration.

The founders often characterized this right to "alter or abolish" government in generational terms; a legitimate government must earn the consent of every generation subject to its jurisdiction. Some governmental forms were thought to be irredeemably incompatible with the principle of intergenerational consent - hereditary monarchies for example. In Common Sense, Tom Paine argued that "hereditary succession as a matter of right is an insult and an imposition on posterity." f177

Democratic republics, while somewhat more protective of posterity's sovereignty, could also pose threats. The drafters of the early state constitutions, recognizing the possibility that the political systems they created might one day be perverted, repeatedly and emphatically reminded their descendants of their right to begin anew:

"whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind." f178

The idea was sometimes formulated, per Sidney, in terms of the need for a "frequent recurrence to fundamental principles."f179 Some states also took notice of a form of re-constitution explicitly endorsed by Locke: f180 the right to repatriate and "form a new state in vacant countries." f181

References to the right of re-constitution cropped up repeatedly during the ratification debates. In the Federalist papers, Alexander Hamilton affirmed the right of re-constitution as originally articulated in the Declaration. f182 While antifederalist agitators complained that the lack of a bill of rights left no institutional safeguard for future generations' unalienable rights, federalists such as Noah Webster warned that a Bill of Rights would itself violate posterity's sovereign right of re-constitution. f183

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