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

II. The Intergenerational Philosophy of the Founders and Their Contemporaries

B. Generational Sovereignty and the Land – The Earth as Tenancy-in-Common - Thomas Jefferson's Usufruct, cont.

The contemporary issue to which Jefferson's arguments most literally apply is the problem of topsoil depletion. As a planter in predominantly agrarian Virginia, who tended to view wealth as the direct or indirect product of the earth, f130 it was natural for Jefferson to phrase his discussions of intergenerational relations -- even intergenerational economic relations -- in terms of soil:

"Are [later generations] bound to acknowledge [a national debt created to satisfy short-term interests], to consider the preceding generation as having had a right to eat up the whole soil of their country, in the course of a life . . .? Every one will say no; that the soil is the gift of God to the living, as much as it had been to the deceased generation; and that the laws of nature impose no obligation on them to pay this debt." f131

Jefferson asserts that each generation has the right to inherit, undiminished, the same topsoil capital that its predecessors enjoyed. f132 Our society's failure to recognize and defend this most basic principle of intergenerational fairness during the past century has resulted in topsoil depletion that has reached crisis proportions. Soon we may have literally and irreparably "eaten up the whole soil of our country." f133

Of course, the principle applies to a myriad of resources other than soil. For instance, the extermination of a salmon fishery, through shortsighted hydropower, irrigation or logging policies, would also constitute an "eating up of usufruct," as would the depletion of a freshwater aquifer that takes centuries to recharge itself. f134

Jefferson also emphasizes the relevance of intergenerational equity principles to what would today be characterized as "takings" issues:

"It [generational sovereignty] enters into the resolution of the questions Whether the nation may change the descent of lands holden in tail? Whether they may change the appropriation of lands given . . . in perpetuity? Whether they may abolish the charges and privileges attached on lands . . .? . . . and it renders the question of reimbursement a question of generosity and not of right. 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." f135

Jefferson accepts the traditional notion that the land and the other resources of the earth belong to all generations in common. He further insists that no generation of citizens, acting individually or collectively, may rightfully prejudice later generations' equal enjoyment of that land and those resources. f136 If a government or agent of government attempts to convey or define a property interest that would allow the beneficiary to unfairly prejudice the interests of later generations, Jefferson's view is that said agent exceeds his/her/its authority. Jefferson unequivocally insists that such purported property rights may be revoked by later generations without compensation.

Jefferson's attitudes on intergenerational obligation were far from anomalous. The same authorities that shaped Jefferson's conception of the earth as an intergenerational commons -- authorities such as Plato, the Old Testament prophets, Aquinas, Locke, and Sidney f137- also helped to shape the views of his contemporaries. The biblical notion that God granted the world to Adam and his posterity in common was part of mainstream English and American legal tradition. f138 James Madison, the recipient of Jefferson's seminal letter, while concerned that some of his friend's intergenerational reasoning might be ahead of its time, f139 felt that "the idea which the [letter] evolves is a great one . . .".f140 In his exhaustive examination of Jefferson's generational theories, Herbert Sloan remarks that, "what makes Jefferson's views important . . . is not so much that he held them, but that they were widely shared." f141

The conviction that no person could acquire a perpetual interest in the earth f142 was also common coin. In his Agrarian Justice, Paine reminded his readers that:

"There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it: neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue." f143

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