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

II. The Intergenerational Philosophy of the Founders and Their Contemporaries

C 'Inalienable' rights - Virginia Declaration

This intergenerational element of "inalienability" had great rhetorical importance to the American colonials. The earliest articulations of American discontent with England were set forth as criticisms of Parliament's failure to honor the colonists' intergenerational rights as British subjects. f159 The Americans claimed that certain "Rights of Englishmen" had been guaranteed to them in perpetuity by both charter and statute, f160 and that these rights had been eroded and infringed upon by Parliament since the first settling of the colonies. Supporters of parliament's prerogatives, for their part, argued that the political rights which the colonists' ancestors had prior to immigrating had been waived by the decision to immigrate, or by colonial acquiescence to Parliamentary overreaching during the subsequent centuries. To counter these arguments, the colonists espoused the proposition that certain types of rights could never be lost to later generations through the action or inaction of earlier generations. f161 Such rights were "indeprivable" or "unalienable." As Daniel Webster would later explain, "A State can never alienate a natural right - for it cannot legislate for those who are not in existence." f162

While some of these unalienable intergenerational rights, such as the right to liberty, were primarily individual in nature, others, such as the unalienable right to "alter or abolish" government were public rights, f163 belonging to posterity collectively.

Professor A.E. Dick Howard maintains that the committee draft of the Virginia declaration, cited above, is "the most influential constitutional document in American history." f164 The Virginia document's intergenerational focus would eventually find an echo in the posterity clause of the federal constitution's preamble f165 - not a surprising coincidence, given the heavy involvement in the federal convention of George Mason and James Madison, both of whom helped to draft the Virginia Declaration. f166

Before the writing of the constitution, the philosophy of the Virginia Declaration found its way into the Declaration of Independence. Joseph Ellis has emphasized the role which the Virginia document played in the shaping of the more famous federal Declaration. f167 It is a matter of record that the Virginia declaration was adopted June 12, 1776 and published in the Pennsylvania Gazette the same day. Jefferson, a Virginian himself, received a copy of the Gazette in Philadelphia, and drafted his first version of the Declaration of Independence sometime the following week. f168

The federal Declaration proclaims that:

"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." f169

Because the Declaration is the founding document of the American republic, its pronouncements on natural rights have been recognized around the world as "the seminal statement of the American creed." f170 By employing the "life, liberty . . ." phraseology of the Second Treatise, Jefferson and the other signatories confirmed a central place in that creed for Locke's philosophy of rights, which was an unequivocally intergenerational philosophy. f171 By employing the Virginia declaration's "unalienable" language, the signatories made their adherence to a political philosophy of intergenerational obligation even clearer.
The intergenerational aspects of the founders "unalienable rights" philosophy, evidenced in the Declaration and elsewhere, f172 must be accorded due weight in any legitimate system of constitution interpretation. f173


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