Intergenerational Justice in the United States Constitution,
The Stewardship Doctrine:
III. Constitutional Text

C Corruption of Blood, Slavery, and Equal Protection- Madison on 'factions'

It may be instructive to look back upon Madison's famous essay on factions f276 with these concerns in mind. Madison defined a 'faction' as "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community."f277 The terms of this definition would appear to include any living generation, when considered in relation to remote future or past generations.

Madison clearly felt that one of gravest threats posed by factions was the threat to society's long term interests. To counter this threat, he placed some degree of faith in the good judgment of character of elected leaders. f278 However, he also recognized the need for supplemental institutional safeguards, and this was one of his primary justifications for recommending a republic of such vast territory: "Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens."

Unfortunately, while this reliance upon size has proven to be helpful in insuring that different economic and geographic interests do not gain oppressive power, it provides no protection against the tendency of any given generation to discriminate against the unrepresented future generations who will succeed them in the republic. Posterity remains a "relatively powerless, non-participating group," regardless of the country's geographic size, and therefore requires special structural protections.

Another widely accepted guideline for determining equal protection 'eligibility' concerns the closed nature of the class sought to be protected. f279 This concern is sometimes referenced by words such as 'immutability,' 'insularity,' and 'permanence.' Whatever the words used, the underlying insight is that a disfavored group is more deserving of judicial protection to the extent that its members have no opportunity to relocate from the relevant disfavored class to the relevant favored class. Remote future generations unquestionably constitute an immutable, closed class in this sense, since the members of future generations can by no means change their location in time. If economic, social or environmental burdens are shunted by an earlier generation onto later generations, the members of those later generations can by no amount of work or personal merit shift their lives forward in time to avoid the burdens and take advantage of the present generation's advantages.

One 'suspect' class typically identified under the prevailing guidelines as meriting protection is the class of non-residents, individuals who do not reside within the physical jurisdiction of the government entity which has disadvantaged them. f280 One way to appreciate the political position of posterity is to view it as an especially disenfranchised sub-class of non-residents - or 'not-yet-residents.'f281 If other non-residents are to be granted protection due to their lack of an effective political voice, then surely 'not-yet-residents' are in need of protections as great or greater.

There is dicta to be found in the Supreme Court's abortion rights cases, which would appear, superficially, to contradict the theory of 14th Amendment protection for remote generations. In Roe v. Wade, for instance, the court rejected the contention that a fetus was a "person" within the meaning of that term in the 14th Amendment, arguing that "in nearly all . . . instances, the use of the word [person] is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application."f282

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Madison on 'factions':
Federalist No. 10 (1787) the text of Federalist 10, Madison writing as "Publius"
James Madison Godfather of the constitution Bruce G. Kauffmann (Godfather in the old fashion sense, like a father)
Terrorism, and Education: Hume, Madison and Factions by Michael Taylor, Oklahoma State University


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