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

Footnotes 7: Public Debt

204 Herbert Sloan, Principles and Interest, at 77.

205 Montesquieu, THE SPIRITS OF THE LAWS, trans. Thomas Nugent (New York, 1949) 82 (bk 11, ch. 6). See Koch, Jefferson and Madison, 65, 76, 78 (re: Montesquieu's influence on Jefferson); MacDonald, Novus Ordo Seclorum, 7 (re: the influence of Montesquieu's thought in the Constitutional Convention.)

206 Hume, "Of Public Credit," in Miller, ed., Essays, 352.

207 Smith, p. 651.

208 U.S. Const., Preamble (emphasis supplied).

209 See Part , supra.

210 See Part , supra.

211 Pennsylvania Charter of Privileges (1701) Thorpe, The Federal and State Constitutions . . . , V: 3076-81, Schwartz I: 171 ("I the said William Penn do declare, grant and confirm, unto all the Freemen, Planters and Adventurers, and other Inhabitants of this Province and Territories, these following Liberties, Franchises and Privileges . . . to be held, enjoyed and kept, by the Freemen, Planters and Adventurers . . . for ever."

212 Massachusetts Body of Liberties, Preamble (1641), Schwartz I: 71, 72 ( "We hould it therefore our dutie and safetie whilst we are about the further establishing of this Government to collect and expresse all such freedomes [Rites, liberties and priveledges] as for present we foresee may concerne us, and our posteritie after us, And to ratify them with our sollemne consent.

213 Massachusetts Declaration of Rights (1780), Schwartz I: 222-27 ("We, therefore, the people of Massachusetts, acknowledging. . . an opportunity . . of forming a new Constitution of Civil Government, for ourselves and posterity; . . . Do agree upon, ordain and establish, the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts."

214 Virginia Declaration of Rights, Preamble (1776) ("A Declaration of Rights made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.")

215 Holmes v. Jennison, 39 U.S. 538, 570 (1840). See also Richfield Oil v. State Board, 329 US 69, 77-78 (1946) ("Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning").

216 Sidney Ch III, sec 25 P. 365. See also "Brutus" XII, NY Journal, Feb. 7 and 14, 1788
("To discover the spirit of the constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the preamble . . .").

217 2 Dall 419, 1 L. Ed. 440 (1793). (The constitutional issue in question was whether federal courts could exercise jurisdiction in a case brought by a private citizen of one state against another state.)

218 Id. at and . Justice Wilson was in an excellent position to gauge the proper weight to be accorded the Preamble, having helped to draft it while serving on the constitutional convention's Committee of Style.

219 Wayte v. United States, 470 U.S. 598, 612 (1985)(relying in part upon "provide for the common defense" to uphold prosecution of draft registration resisters.)

220 Goldberg v. Kelly, 397 U.S., , 265 (19 ) (relying in part on "promote the general welfare and secure the blessings of liberty" to justify government benefits programs.)

221 Gray v. Sanders, 372 U.S. 368 (1963) (explicating "We the People.")

222 Texas v. White, U.S. 700 (1868). (relying almost exclusively on the words "to form a more perfect union").

223 1 J STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 462 (2d ed. 1885). See Jacobson v. Massachussetts, 197 U.S. 11, 22 (1905)("Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.") See also Handler et al., "A Reconsideration of the Relevance and Materiality of the Preamble in Constitutional Interpretation.,"12 CARDOZO LAW REVIEW 117-118 (1990) (recommending the Preamble as an aid to proper construction of constitutional text) and at 131-148 (explaining how reliance upon the Preamble is consistent with interpretivist, noninterpretivist, and originalist schools of constitutional interpretation).

224 Compare with Pennsylvania Declaration of Rights (1776), Schwartz, II: ? ("We, the representatives of the freemen of Pennsylvania . . being fully convinced, that it is our indispensable duty to establish such original principles of government, as will best promote the general happiness of the people of this State, and their posterity, and provide for future improvements, . . . do, by virtue of the authority vested in us by our constituents, ordain, declare, and establish, the following Declaration of Rights and Frame of Government")(emphasis supplied); Vermont Declaration of Rights (1777), Schwartz II: ? (language identical to Pennsylvania's).

225 Carrasco and Rodino, " 'Unalienable Rights,' The Preamble, and the Ninth Amendment: The Spirit of the Constitution," 20 SETON HALL L. REV. 498 (1990) 508 ("the clause, 'secure the Blessings of Liberty to ourselves and our Posterity,' implies that each generation must act as guardian and protector of the rights inherited from the preceding generation. These rights may then be handed down untrammeled and unimpaired to the next generation.")

226 Compare Virginia's Declaration of Rights (1776) ("Article 1 . . .That all men . . . have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.")

227 See Winona LaDuke, "Next Independence Day, Look Ahead," 13 Earth Island Journal (1998) ("The preamble to the United States Constitution declares that one of its purposes is to secure 'the blessings of liberty, to ourselves and our posterity.' Shouldn't those blessings include air fit to breathe, water decent enough to drink and land as beautiful for our descendants as it was for our ancestors? . . . These rights to use and enjoyment [of common property] are essential to life, liberty and the pursuit of happiness"); Ogle, p.5 ("the 'blessings' [of liberty] must include the basic infrastructure of life and society: i.e. land, air, water, food, and the freedom to obtain and use these things.")

228 See Scott Douglas Gerber, TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION. (New York University Press: New York and London, 1995) 63 (reading 'blessings' as 'blessings previously enumerated' and suggesting that "the Constitution promises to preserve those blessings for the generations of Americans to come"); Dan Himmelfarb, "The Preamble in Constitutional Interpretation," 2 SETON HALL CONST. L. J. 127, 143 n. 41 (Fall, 1991) ("Insofar as it is true that 'the Constitution is itself . . . A BILL OF RIGHTS,' [citing A. Hamilton in The Federalist No. 84] the phrase 'to secure the Blessings of Liberty' might correspond to a specific constitutional provision - namely, the entire text of the Constitution.")

229 Ogle, Charlie, "Does the United States Constitution Provide Environmental Protection?" (paper presented on behalf of Constitutional Law Foundation at Land, Air, Water Public Interest Law Conference, University of Oregon, March 7, 1998). The Ogle article contains the most careful analysis of Preamble grammar that this author has discovered.

230 See Farrand's Records (August 6, 1787) II: 590 (indicating that the following language was referred to the Committee of Style and Arrangement: "We the people of the States of New Hampshire, Massachusetts, . . . do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.") The final version of the Preamble was reported out of the Committee of Style on Sept. 12 with no explanation for the changes. Id. at II: 590.

231 See, e.g., Massachusetts Ratification Proclamation (Feb. 6, 1788) ("The convention . . . in order to form a more perfect union, establish justice, . . . , and secure the blessings of liberty to themselves, and the posterity - Do . . ."); South Carolina Ratification Proclamation (May 12 - 23, 1788) ("The Convention, having maturely considered the Constitution, . . . in order to form a more perfect union, establish justice, . . . , and secure the blessings of liberty to the people of the said United States, and their posterity ,??Do . . .").

232 See Compact Edition of the Oxford English Dictionary , Oxford University Press (1988) (" 'Establish' -- To secure or settle (property, privileges, etc.) to or upon persons." Example provided from Walton's Life of Hooker (1665): 'destroying what was by those known laws happily establisht to them and their posterity." . . . " 'Ordain' -- "To assign (to any one) as a share, portion, or allowance; to allot." Example provided from Dalrymple's 1596 translation of Leslie's History of Scotland I: 106 "To thame for their travel publikie is ordayned thair sustentatione . . . ."); First Charter of Virginia (1606), Schwartz I: 57 ("And we do also ordain, establish, and agree, for Us, our Heirs, and Successors . . .).

233 See Jim Gardner, "Discrimination Against Future Generations: The Possibility of Constitutional Limitation," 9 ENVIRONMENTAL LAW 29, 35, 33 (1978) ("The statement in the Preamble that the Constitution was established to secure the blessings of liberty for "posterity" bears [a] relationship to certain remaining provisions in the Constitution: it articulates a constitutional policy which subsequent provisions translate into specific guarantees and safeguards. . . . [P]olicies such as the principle of intergenerational fairness may in certain circumstances limit the power of state and federal governments to impose disadvantages on future generations.") See also Ogle, at 3, 6 ("all substantive powers conferred by the Constitution are subject to the Preamble's indication that 'we the people' act for Ourselves and our Posterity. Express limitations on government should also be construed in light of the preamble's requirement. . . . The government, it seems, must, in all its actions, serve the needs of two interest groups: 'Ourselves,' or today; and 'Posterity,' or the future.")April 3, 2001