Jefferson examined the question of re-constitution especially closely. In his letter to Madison, he occasionally supplements his 'entailed estate' description of intergenerational relations with a description based more on the concepts and language of international law:
"[B]etween society and society, or generation and generation, there is no municipal obligation, no umpire but the law of nature. . . . [B]y the law of nature, one generation is [therefore] to another as one independent nation to another." f184
Just as the entailed estate analogy, with its terminology of usufruct and waste, lends itself to issues of land use and property rights, the national sovereignty analogy is well suited to the analysis of power, control, and authority issues which arise between generations. To characterize generations as separate nations is to impliedly reject any generation's authority to legislate for a later generation. The analogy almost presupposes Jefferson's conclusion: that no constitution or law can be perpetual, that every constitution and law requires periodic re-ratification to remain effective.
Jefferson maintains that re-ratification of constitutions and other legislation is required once every generation, and he defines a generation as the period after which a majority of those alive at the time of a law's passage shall themselves have passed away. Applying tables of mortality from the period, Jefferson calculates that:
"Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right." f185
In addition to his philosophic argument for expiring old laws and constitutions, Jefferson makes certain practical arguments. Like Sidney, he stresses the need for governmental institutions to keep pace with the evolution of human reason and understanding, f186 and he identifies periodic re-constitution and re-legislation as mechanisms for insuring that evolution. On practical grounds, he rejects the opportunity for amendment or repeal as an adequate substitute for the requirement of expiration and re-ratification. f187
The same principles which invalidate perpetual constitutions and hereditary monarchies also invalidate, by implication, other perpetual legislation. Complementing the generational right of re-constitution, then, must be a generational right of re-legislation. Paine had applied the principle of generational sovereignty to ordinary legislation in a 1786 communication to the Pennsylvania legislature, in language which closely anticipated the tone of Jefferson's 1789 letter to Madison. Defending the state's right to revoke the Bank of North America's charter, Paine explained that a perpetual charter could not exist:
"As we are not to live for ever ourselves, and other generations are to follow us, we have neither the power nor the right to govern them, or to say how they shall govern themselves. . . . [It is] the summit of human vanity . . . to be dictating to the world to come." f188
He went on to suggest that 30 years was the average length of a generation, that any public act could not be in force longer than that term, and that it would be useful to have an explicit notation to that effect in the constitution. f189
Reflecting the same general philosophy, numerous state constitutions forbade the legislative creation of perpetual
or hereditary privileges. f190
<<previous Stewardship contents next
>>
©Constitutional
Law Foundation, 50 West 36th Street, Eugene, Oregon 97405
Phone: 541-683-4500, Fax: 541-683-4492, clf@conlaw.org
web site design: www.mlwebb.com