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

Footnotes 6: Inalienable rights

174 The term re-constitution, as employed in this article, can signify any of several different types of political restructuring, including: secession, revolution, voluntary repatriation to a territory free of pre-existing government, or a peaceful re-ordering achieved through constitutional amendment or convention.

175 United States Declaration of Independence, par. 2. See also, above, Part II-B-1-b, supra, re. Jefferson's later articulations of this doctrine to Madison and others.

176 See Alexander Hamilton in Papers of Hamilton, Syrett ed. 1:47 ("The only distinction between freedom and slavery consists in this: In the former state, a man is governed by the laws to which he has given his consent, either in person, or by his reepresentative: In the latter, he is governed by the will of another."); John Adams to James Sullivan (May 26, 1776) in Works of Adams, 9:375-378 ("the only moral foundation of government is, the consent of the people.")

177 Thomas Paine, Common Sense, 15.

178 New Hampshire Bill of Rights (1783), Art. X in Thorpe, The Federal and State Constitutions . . . IV, 2453-57. See also Virginia Declaration of Rights (1776), Art. III ("a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish [the existing government], in such a manner as shall be judged most conducive to the public weal"); Pennsylvania Declaration of Rights (1776), Art. ; Maryland Declaration of Rights (1776), Art.; Mass. Declaration of Rights (1780), Art. ; NH Bill of Rights (1783), Art. X; Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, trans. Rita Kimber and Robert Kimber (Chapel Hill, N.C., 1980), 139-41.. See also Virginia Ratification of Federal Constitution, Bailyn, p. (". . . the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression . . ."); id. at recommendation #1, right #3; New York Ratification of Federal Constitution, (adopted Feb. 6 - Aug. 2, 1788, printed early Sept., 1788), in Bailyn, P. 536; Maryland Ratification of Federal Constitution (April 28, 1788) (proposed amendments). All of these provisions defy Blackstone's famous precept that: "no human laws will . . . suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation . . .." Blackstone, Commentaries, 1:161-162.

179 See VA Declaration of Rights (1776), Art. XV ("That no free government, or the blessings of liberty, can be preserved to any people but by . . . frequent recurrence to fundamental principles."; PA Declaration of Rights , Art. XIV; N.C. Declaration of Rights (1776), Art. ; MA Declaration of Rights (1780), Art. XVIII; NH Bill of Rights (1783), Art. XXXVIII. Compare Algernon Sidney, Ch III, sec 25 P. 365 ("All human Constitutions are subject to corruption, and must perish, unless they are timely renewed, and reduced to their first principles. . . .")

180 John Locke, Second Treatise, at par. 121 ( "Whenever the owner [of land], who has given nothing but . . . a tacit consent to the government, will . . . quit the said possession, he is at liberty to go and incorporate himself into any other commonwealth, or to agree with others to begin a new one (in vacuis locis) in any part of the world they can find free and unpossessed.")

181 See, e.g. Pennsylvania Declaration of Rights (1776), Art. XV in Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws (1909), Vol. 5, pp. 3081-92 ("That all men have a natural inherent right to emigrate from one state to another that will receive them, or to form a new state in vacant countries . . . whenever they think that thereby they may promote their own happiness"); Vermont Declaration of Rights, Art. XVII. See also "The Rights of the Colonists and a List of Infringements and Violations of Rights" (1772), in The Writings of Samuel Adams (1906), H. A. Cushing, ed., II: 350-69 ("1. Natural Rights of the Colonists
. . . All Men have a Right to remain in a State of Nature as long as they please: And in case of intollerable Oppression, Civil or Religious, to leave the Society they belong to, and enter into another"); Thomas Jefferson (and the First Continental Congress), "A Summary View of the Rights of British America", in WRITINGS OF THOMAS JEFFERSON (Ford, ed.), I, 421, ff. "Our ancestors . . . possessed a right which nature has given all men, of departing from the country in which 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. . .". Compare J.J. Rousseau, The Social Contract (1755), par. 106 Ch. XVIII ("There is in the State no fundamental law which cannot be revoked, not even the social compact; for if all the citizens assembled in order to break this compact by a solemn agreement, no one can doubt that it would be quite legitimately broken. Grotius even thinks that each man can renounce the State of which he is a member, and regain his natural freedom and his property by quitting the country. Now it would be absurd if all the citizens combined should be unable to do what each of them can do separately.")

182 The Federalist, "Publius" [Hamilton], The Federalist no. 78, NY (May 28 1788) (referring to "that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution whenever they find it consistent with their happiness.") See also Federalist no.s 26 and 28.


183 "Giles Hickory" [Noah Webster] I American Magazine (NY) December 1787 in Bailyn, ed., Debate on the Constitution, 1:671, 2:307. Webster apparently anticipated that the bill of rights would purport to be perpetual, as the Magna Carta and the English Bill of Rights had. Like Paine and Jefferson, Webster eschewed such "perpetual" laws: "[N]o constitutions, in a free government, can be unalterable. The present generation have indeed a right to declare what they deem a privilege; but they have no right to say what the next generation shall deem a privilege . . . The very attempt to make perpetual constitutions, is the assumption of a right to control the opinions of future generations; and to legislate for those over whom we have as little authority as we have over a nation in Asia." Compare the last sentence with Jefferson's assertion to Madison that "by the law of nature, one generation is to another as one independent nation to another." See also Giles Hickory [Noah Webster] III American Magazine (NY) 2/88 ("The advocates seem determined that posterity shall not lose their liberty, even if they should be willing and desirous to surrender it. . .").


184 Id. at . A modern expression of this natural law argument appears in Annette Baier, "For the Sake of Future Generations" in Earthbound: New Introductory Essays in Environmental Ethics. Ed. Tom Regan (New York: Random House, 1984) 242 ("We are in a state of nature toward distant persons, even to our own distant descendants, since no one political order can be known to forge ties of common citizenship between us and them."). The notion that lack of a common judge removes parties (nations or individuals) from the civil law and places them in a state of nature vis-a-vis one another was a generally accepted principle. See, e.g. Locke, Second Treatise at 13.


185 Id. at . See "Jefferson to Samuel Kercheval" (July 12, 1816) ("Each generation is as independent of the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; . . . and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the Constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure."); "Jefferson to Major John Cartwright" (June 5, 1824) L and B at 16:42 ("But can [constitutions] be made unchangeable? Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. . . . . A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man"). Jefferson would continue to analyze generational relations in terms of national sovereignty until the end of his life. See, e.g. Jefferson to Eppes, June 24, 1813 ("We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.")


186 Jefferson to Samuel Kercheval, July 12, 1816 ("Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. . . . It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. . . . We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. . . . let us provide in our Constitution for its revision at stated periods."). Compare Immanuel Kant, "An Answer to the Question: What Is Enlightenment?" in Political Writings, ed. Hans Reiss, trans. H.B. Nesbit (Cambridge, 1991), 57 ("One age cannot enter into an alliance on oath to put the next age in a position where it would be impossible for it to extend and correct its knowledge." Later generations" are within their rights to dismiss these agreements as unauthorized and criminal.)


187 Jefferson to Madison at ?: ("It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. . . . But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.") Clearly, Jefferson's expiration and re-ratification requirements would have profound implications if widely recognized. One of the most obvious ramifications would be the immediate de-legitimization of the federal constitution, which has not been affirmatively endorsed by the citizens of the United States in over two hundred years. See, generally, Stephen Holmes, "Precommitment and the Paradox of Democracy," in Jon Elster and Rune Slagstad, eds., Constitutionalism and Democracy (Cambridge, 1988).

188 Paine Dissertation on Government, 186.

189 Id.

190 See, e.g. North Carolina Declaration of Rights (1776), Arts. XXII and XXIII, in Poore, The Federal and State Constitutions, Colonial Charters and Other Organic Laws of the United States, 2: 1409-11 ("That no hereditary emoluments, privileges or honors ought to be granted or conferred in this State"); Massachussetts Declaration of Rights (1780), Art. VI in Journal of the Convention for Framing a Constitution of Government for the State of Massachusetts Bay, 1779-1780 (1832), 222-27 ("No man, nor corporation . . . have any other title to obtain advantages, or particular and exclusive privileges, . . . than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children . . ."). See also Virginia Ratification of Federal Constitution (fourth right recommended for proposed bill of rights: "No office ought to be hereditary.")

191 James Madison to Jefferson, February 4, 1790, Boyd XVI, 131-34; Koch 16:147-49, Pp. 650-653 in The Republic of Letters, 650-51. See similar arguments by Madison in The Federalist, No.'s 49 and 314. Compare Jefferson to William Stephens Smith (13 Nov. 1787), 12:356 (discussing Shays's Rebellion: "God forbid we should ever be 20 years without such a rebellion.")

192 Id. at 652.

193 Id.

194 See n. ? , infra.

195 See e.g. DECLARATION OF INDEPENDENCE (1776) (condemning the King and Parliament "[f]or imposing Taxes on us without our Consent . . ..")




199 The figure of nineteen years is based upon Jefferson's definition of a generation: "[G]enerations, changing daily by daily deaths and births, have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead." Employing Bouffon's tables of mortality, Jefferson estimated this period at 19 years. Others, such as Thomas Paine and Mercier settled on a period of 30 years.

200 James Madison to Jefferson, February 4, 1790, Boyd XVI, 131-34; Koch 16:147-49. 650, 652-3.?

201 James Madison, "Universal Peace," National Gazette, 31 Jan. 1792, PJM, 14:207-8.

202 ? 316-17.