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




29 See, notably 2 Corinthians 3: 6 (". . .who also hath made us able ministers of the new testament; not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life . . .").

30 1 Cor. 10:24.

31 For an excellent general treatment of Aquinas's intergenerational philosophy, see William George, "Regarding Future Neighbors: Thomas Aquinas and Concern for Posterity," 33 HEYTHROP J. 283-306 (1992).

32 George, "Regarding Future Neighbors . . ." 33 HEYTHROP J. at 291.

33 SUMMA THEOLOGICA at II-II 152, 2. See also,

34 Aquinas, Thomas. THE POLITICAL IDEAS OF ST. THOMAS AQUINAS. Ed. Dino Bigongiari (Macmillan Publishing Co.:1981) 66 Q. 96, A. (citing Augustine's De Civ. Dei II, 21). Although Aquinas's views most often hark back to neo-Platonism and the early church fathers, his intergenerational political philosophy had Roman roots as well. In the passage above, he cites a paragraph from Augustine's City of God, in which Augustine himself cites back to Cicero. Both Augustine and Cicero explained the decline of the Roman empire as resulting from political policies motivated by shortsighted factional interest rather than by concern for the long term interests of the intergenerational community.

35 See Jill LeBlanc, "Eco-Thomism," 21 ENVIRONMENTAL ETHICS 293 (1999); Patrick Halligan, "The Environmental Policy of Saint Thomas Aquinas, 19 ENVTL L. 767 (1989).


37 LeBlanc, "Eco-Thomism" at 301.

38 SUMMA THEOLOGICA , I, 65, 2 ad 2. ("The proximate end does not exclude the ultimate end. Therefore, that corporeal creatures were, in a manner, made for the sake of the spiritual, does not prevent their being made on acount of God's goodness.") See id. at I-8-1 ("God is in all things, and innermostly"). See also Ecclesiastes18, 19 ("I said in mine heart concerning the estate of the sons of men, . . . that they might see that they themselves are beasts. . . . yea, they have all one breath; so that a man hath no preeminence above a beast; for all is vanity.")

39 Id at II-II-76-2. Compare Stammer, "Harming the Environment Is Sinful, Prelate Says," Los Angeles Times A-3, 41 (November 9, 1997) (reporting that Anglican church declared environmental abuse to be blasphemy in 1971.)

40 See Evangelium Vitae -- (1995)(Encyclical issued by Pope John Paul II), sec. 42 ("As one called to till and look after the garden of the world, man has a specific responsibility towards the environment in which he lives, towards the creation which God has put at the service of his personal dignity, of his life, not only for the present but also for future generations. It is the ecological question--ranging from the preservation of the natural habitats of the different species of animals and of other forms of life to "human ecology" properly speaking which finds in the Bible clear and strong ethical direction . . . when it comes to the natural world, we are subject not only to biological laws but also to moral ones, which cannot be violated with impunity"); id. at sec. 34 ("[N]atural resources are limited; some are not, as it is said, renewable. Using them as if they were inexhaustible, with absolute dominion, seriously endangers their availability not only for the present generation but above all for generations to come"); Encyclical of the Ecumenical Patriarchate (March 12, 1995) (issued by Bartholomew I, "first among equals" of the nine Orthodox patriarchs) ("To commit a crime against the natural world is a sin. . . . For humans to cause species to become extinct and to destroy the biological diversity of God's creation, for humans to degrade the integrity of the Earth by causing changes in its climate, stripping the Earth of its natural forests, or destroying its wetlands . . . for humans to contaminate the Earth's waters, its land, its air, and its life with poisonous substances - these are sins. . . . This self-centered behavior is a symptom of our alienation from one another and from the context of our common existence").


41 Magna Carta (1215), intro., 1.

42 Id. at 61.

43 E.g. id. at 1.

44 E.g. id. at 2.

45 Id. at 4, 5 (forbidding waste or destruction upon lands and estates -- including parks, preserves, and ponds -- entrusted to the wardship of the King or his assignees on behalf of underage subjects).

46 Id. at 61.

47 Bill of Rights (England, 1689) (emphasis supplied).

48 Id.

49 Burke, p. 37. Compare John Quincy Adams's Inaugural Address (March 4, 1825) (We now receive our [constitutional government] as a precious inheritance from those to whom we are indebted for its establishment, doubly bound . . . to transmit the same unimpaired to the succeeding generation").

50 U. S. Constitution (1791), Preamble.



51 See Becker, THE DECLARATION OF INDEPENDENCE: A STUDY IN THE HISTORY OF POLITICAL IDEAS (Random House: 1942) 75 (noting that among revolutionary leaders "the political writings of Locke, Sidney, and Milton are frequently mentioned with respect and reverence"). Jefferson said of the Declaration of Independence: "All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, in printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc." (Letter from Thomas Jefferson to Richard Henry Lee, May 8, 1825, in Boyd 16: 118-19). See also Houston, Alan Craig. ALGERNON SIDNEY AND THE REPUBLICAN HERITAGE IN ENGLAND AND AMERICA (Princeton Univ. Press, Princeton, NJ: 1991).

52 Robert Filmer, Patriarcha and Other Writings, ed. Johann P., Sommerville (New York: Cambridge Univ Press, 1991).

53 Sidney, DISCOURSES CONCERNING GOVERNMENT (London, 1698) Ch.1, sec IX, p. 22 and Ch II, sec 4 p. 71, 73 ("The power of a father belongs only to a father. . . that absolute power . . . which the patriarchs exercised, [has] been equally inherited by their children, and consequently by every one of their posterity. . .").

54 Id. at Ch. I, sec 6, pp. 14, 15 ("God leaves to man the choice of forms in government; and those who constitute the form, may abrogate it. . . .. If the multitude therefore do institute, the multitude may abrogate; and they themselves, or those who succeed in the same right, can only be fit judges of the performance of the ends of the institution.")

55 Id. at Ch II, Sec 17, p. 136. ("[T]he wisdom of man is imperfect, and unable to foresee the effects that may proceed from an infinite variety of accidents, which according to emergencies, necessarily require new constitutions, . . . and he that should resolve to persist obstinately in the way he first entered upon . . . does as far as in him lies, render the worst of errors perpetual.") English equity courts existed in part to address just such unforeseen exigencies as Sidney references here. The role of equity in the proposed Stewardship Doctrine is examined further at section III - B of this article.

56 Id. at Ch III, sec 25, p. 365.

57 Jefferson to James Madison, September 6, 1789, supra.

58 Id. at Ch III, Sec 29, p. 391-392. Compare this challenge to title with Jefferson's later challenge to "appropriation of lands, . . . hereditary offices, . . .perpetual monopolies in commerce . . .. In all these cases, the legislature of the day could authorize such appropriations and establishments for their own time, but no longer; and the present holders, even where they, or their ancestors, have purchased, are in the case of bona fide purchasers of what the seller had no right to convey." Jefferson to James Madison, September 6, 1789, supra at n. 23. On Sidney's view of the Earth as commons, see Houston, ALGERNON SIDNEY AND THE REPUBLICAN HERITAGE IN ENGLAND AND AMERICA (Princeton, N.J., 1991), 105-7.

59 See Jean Bodin, THE SIX BOOKES OF A COMMONWEALE (Eng. trans. 1606) (Harvard University Press, Cambridge, Mass.: 1962) 653 (asserting that the king may not alienate any part of the royal domain, since it is given to him only for use, not in ownership).

60 Howe (1702), (Oxford English Dictionary, 1st ed., s.v. "Usufruct"). Compare Thomas Jefferson to James Madison, September 6, 1789, Boyd XV, 392-98 ("I set out on this ground, which I suppose to be self-evident, 'that the earth belongs in usufruct to the living' . . ..").

61 See Gerber, TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION. (New York University Press, New York and London 1995) 27-29 (detailing Locke's influence on Jefferson, James Otis, John and Samuel Adams, James Wilson and Alexander Hamilton)(hereinafter TO SECURE THESE RIGHTS . . .); McDonald, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION (Lawrence, Kansas: 1985) ix ("that the central argument of the Declaration is based mainly upon John Locke's Second Treatise is indisputable"), 7 (noting Locke's influence in the constitutional convention); Rossiter, SEEDTIME OF THE REPUBLIC (New York, 1952) (esp. ch. 12); Becker, THE DECLARATION OF INDEPENDENCE: A STUDY IN THE HISTORY OF POLITICAL IDEAS (Random House: 1942) 27 ("most Americans had absorbed Locke's work as a kind of political gospel").

62 But see Wolf, "Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations." 105 ETHICS 791-818 (1995).

63 For a discussion of Locke's influence on Jefferson's generational philosophy, see Peterson, THOMAS JEFFERSON AND THE NEW NATION: A BIOGRAPHY (New York, 1970) 383; Lynd, INTELLECTUAL ORIGINS, 78-81; Koch, JEFFERSON AND MADISON: THE GREAT COLLABORATION (New York: Alfred A Knopf: 1950) 65, 76, 78.

64 Locke, ESSAYS ON THE LAW OF NATURE, 113-14.

65 Locke, John, TWO TREATISES OF GOVERNMENT (1689), Ed. Peter Laslett. 2d ed. (Cambridge: 1967) 7, 16, 134, 135, 149, 159, 171, 183.

66 Locke, Second Treatise, at 25 (citing Psalms 115:16) and 34. See also Lev. 26:14, 32, 35 ("The land must not be sold permanently, because the land is mine and you are but aliens and my tenants.")

67 See, e.g. RESTATEMENT (SECOND) OF THE LAW OF PROPERTY § 12.1 (1)(1977) (Tenants have the right to reasonable use of property, but must return it in good condition).

68 Gerber, TO SECURE THESE RIGHTS . . ., 45.


70 Id. at 31. See also Squadrito, Kathleen M., "Locke's View of Dominion," 1 ENVIRONMENTAL ETHICS 255, 259 (1979) ("The view of dominion that Locke adopts in Some Thoughts Concerning Education is one of responsible stewardship, an interpretation of Genesis that stresses man's duties and obligations towards all creation. . . To spoil or waste any part of God's creation is a sin").

71 Locke, Second Treatise at 46.

72 See id. at 34 ("God gave the world to men in common; but . . . it cannot be supposed He meant it should always remain common and uncultivated") and 42 ("Land which is wholly left to Nature, that hath no improvement of Pasturage, Tillage, or Planting is called, as indeed it is, waste. . ."

73 Id. at 6 (emphasis supplied). See also Locke, First Treatise 50-56 (God does not permit us "to destroy those he has given us the Charge and Care of"; God requires us to preserve his creation).

74 See id. at 36 (" there is [in 1689] land enough in the world to suffice double the inhabitants").

75 See Alan Randall, What Mainstream Economists Have to Say About the Value of Biodiversity, in BIODIVERSITY 217, 219-20 (E.O. Wilson ed., 1988) (discussing the increasing recognition by scientists and economists of undeveloped nature's economic value to society).

76 In contemplating which modern practices Locke might condemn as "waste," it is helpful to consider the legal sense of the term "waste" which prevailed in pre-revolutionary England and which remains largely unchanged. Waste was defined by Blackstone as "a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disheison of him that hath the remainder or reversion." 2 Blackstone, COMMENTARIES at 281. This legal doctrine of waste is addressed more towards the prevention of over- or mis-utilization of resources than towards prevention of underutilization. In so far as the waste doctrine concerns itself with the protection of successors' interests, it lends itself readily to the analysis of intergenerational issues.

77 "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, that among these are Life, Liberty, and the Pursuit of Happiness."

78 " No person shall be . . . deprived of life, liberty, or property, without due process of law . . .." U.S. CONST., AM. V.

79 Locke, Second Treatise, at 135 ("it [the legislative power] can be no more than those persons had in a state of nature before they entered into society. . . [and a person has] in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind.")

80 Id. at 27 (emphasis supplied). See also 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 478 (property "embraces everything to which a man may attach a value and have a right, and which leaves to every one else the like advantage")(emphasis in original).

81 Id. at 32. See also 33 ("Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst; and the case of land and water, where there is enough of both, is perfectly the same.").

82 See id. at 36 (noting "").

83 See Clark Wolff, "Contemporary Property Rights, Lockean Provisos, and the Interests of Future Generations." 105 Ethics 791, 799 (1995) ("The strongest argument in favor of the proviso is that it is necessary if initial appropriation is to avoid unjustifiably harming others. Since future generations are among those who might be harmed, justified initial appropriation must leave enough and as good for them as well"); John Sanders, "Justice and the Initial Acquisition of Property," Harvard Journal of Law and Public Policy 10 (1987): 390-91.

84 See id. at pp. 810-814 (section titled "The Structure of Usufructuary Rights") (Extrapolating from Locke's Proviso, Wolf proposes a system for evaluating private property rights on the basis of their compatibility with society's long-term interests. He argues that: "There is no reason to believe that the rights that arise as a result of [the appropriation] process will include all of the constituent claims and liberties associated with 'full-blown ownership'. . . . If the land one wishes to appropriate and to cultivate is needed by future persons for the satisfaction of their basic needs, then the proviso may prohibit cultivating the land in destructive ways (say, by ignoring the effects of erosion or by irreparably leeching the land of its fertility). . . . This is not just a conclusion about what it is right for us to do, it is a conclusion about the nature of the claims we can legitimately make and the constitution of our property rights themselves. The rights we have in resources to which this analysis applies are more like usufructuary rights than rights of full-blown ownership. . . . Usufructuary rights cannot include the liberty to consume, destroy or annihilate the property in question. . . . If there are some claims, or some kinds of claims, which could not come into existence without causing harm, then those claims cannot be constituent elements of current property rights either. If the right to destroy or degrade such resources could not legitimately have been acquired or transferred, then it cannot now be legitimately claimed."

85 Locke, Second Treatise at 12, 135, 171. See also id. at 158 (the power of the legislature or commonwealth "being but the joint power of every member of the society . . . it can be no more than those persons had in a state of nature before they entered into society . . . for nobody can transfer to another more power than he has in himself"); id. at 136, n. 3, (quoting Hooker's Ecclesiastical Polity, III, 9 to the effect that "laws human must be made according to the general laws of Nature . . . otherwise they are ill made.")

86 See e.g. Duncan, "Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis," 26 ENVIRONMENTAL LAW 1095, 1122 (1996) (recognizing Locke's formulation of a "living within limits" ethic); Elliot, "Future Generations, Locke's Proviso and Libertarian Justice," 3 JOURNAL APPLIED PHILOSOPHY 217 (1986)(finding in Locke a call for resource and wilderness conservation); Squadrito, "Locke's View of Dominion" 262 ("Locke could not foresee the ecological crisis of the twentieth century. . . . However, . . . [s]ince ecological balance is essential to the survival of God's creation, and human beings are commanded by God to preserve their own species, it is clear that Locke would not endorse behavior that tends to disrupt the ecological balance of the Earth").

87 Locke, Second Treatise, at 73, 116. The idea that citizenship must be treated as a matter of individual choice was not original to Locke; it was a widely accepted principle of international law. The related idea that there are limits on one generation's authority to bind later generations was slightly more novel. That idea would one day be enthusiastically endorsed by the fledgling American republic. See Virginia Declaration of Rights, Art. 1 ("all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity . . ..")

88 Id. at 121. See also id. at 114,115. ("There are no examples so frequent . . . as those of men withdrawing themselves and their obedience from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new government in other places.") This right of repatriation was integral to Locke's theories of social contract and tacit consent. It was only because citizens were free to depart and 'set up shop' elsewhere, that a government could reasonably construe an individual's presence within specified borders as tacit consent to governmental jurisdiction. Some indicator of consent was critical under Locke's theory; without evidence of the consent of the governed, one cannot speak of a voluntary social contract. Without such a voluntary contract, according to Locke, a state had no legitimate authority over its citizens.

89 See "A Summary View of the Rights of British America." (July 4, 1774) in THE PORTABLE THOMAS JEFFERSON 4, ed. by Merrill Peterson (Penguin 1975) ("Our ancestors . . . possessed a right, which nature has given to all men, of departing from the country in whiwhich chance, not choice has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness.")