CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO 09 Common law common ground and Jeffersons Principle David a. strauss THE LAW SCHOOL THE UNIVERSITY OF CHICAGO This paper can be downloaded without charge at The Social Science Research Network Electronic Paper collection http://papers.ssrn.com/paper.taf?abstract_id=224285
This paper can be downloaded without charge at: The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=224285 CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 09 Common Law, Common Ground, and Jefferson’s Principle David A. Strauss THE LAW SCHOOL THE UNIVERSITY OF CHICAGO
DRAFT 13 Apr Please do not cite or quote without permission Common Law, Common Ground, and Jeffersons Principle David A. strauss The earth belongs to the living The earth belongs in usufruct to the living, " Thomas Jefferson famously wrote from Paris in 1789, in a letter to James Madison. The question [w]hether one generation of men has a right to bind another, seems never to have been started sic] either on this or our side of the water, "even though"it is a question of such consequences as.. Ito] place among the fundamental principles of any government. "Jeffersons answer to the question, of course, was no. "We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another "1 Therefore, Jefferson said, "lelvery constitution.. and every law, should"naturally expire[l at the end of 19 years. "(Jefferson elaborately calculated, on the basis of life expectancies at the time, that a majority of people 21 and older would die within 19 years, and concluded that that was Harry n. Wyatt Professor of Law, the University of Chicago. This paper is adapted from a chapter in a book in progress on common law constitutional interpretation. I am grateful to participants in workshops at the University of Michigan, University of Pennsylvania, University of Chicago, and Yale Law Schools for their comments on various versions of this paper ILetter of Sept. 6, 1789, to James Madison, reprinted in xxx
DRAFT 13 Apr Please do not cite or quote without permission Common Law, Common Ground, and Jefferson’s Principle David A. Strauss* “The earth belongs to the living” “The earth belongs in usufruct to the living,” Thomas Jefferson famously wrote from Paris in 1789, in a letter to James Madison. “The question [w]hether one generation of men has a right to bind another, seems never to have been started [sic] either on this or our side of the water,” even though “it is a question of such consequences as . . . [to] place . . . among the fundamental principles of any government.” Jefferson’s answer to the question, of course, was no. “We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another.”1 Therefore, Jefferson said, “[e]very constitution . . . and every law,” should “naturally expire[] at the end of 19 years.” (Jefferson elaborately calculated, on the basis of life expectancies at the time, that a majority of people 21 and older would die within 19 years, and concluded that that was * Harry N. Wyatt Professor of Law, the University of Chicago. This paper is adapted from a chapter in a book in progress on common law constitutional interpretation. I am grateful to participants in workshops at the University of Michigan, University of Pennsylvania, University of Chicago, and Yale Law Schools for their comments on various versions of this paper. 1Letter of Sept. 6, 1789, to James Madison, reprinted in xxx
the best measure of a generations life span. ) If any law "be enforced longer, it is an act of force, and not of right. 3 Jeffersons argument, in some form, goes back at least to Hume's essay Of the Original Contract. It was a repeated refrain of Thomas Paines. Many others besides Jefferson made similar arguments at the time of the drafting and ratification of the Constitution; Noah Webster ridiculed Jefferson for not holding the principle more consistently Jeffersons principle remains, today, the central challenge to written constitutionalism-indeed perhaps to more than that, since much ordinary legislation is the product of earlier generations too. Jeffersons argument is the starting point for many discussions about the nature of constitutionalism. 4 But to this day it is not clear how to answer Jeffersons argument. This principle that the earth belongs to the living, and not to the dead is of very extensive application and consequences in every country Jefferson said. In our own legal culture, the questions are, among other things, why the generations who drafted the Constitution of 1787 or the Bill of Rights, or the post-Civil War amendments to the Constitution have a right to rule us today. Specifically, why do we care about their intentions which are generally thought to have some importance to current constitutional controversies? And, more pressing why do we even care about the documents they adopted, which everyone today would acknowledge to be in some sense authoritative? 2See Letter of July 12, 1816, to Samuel Kercheval, reprinted in xxx; see also Letter of Sept6,1789 3Letter of Sept 6, 1789 Eg most of the essays in Larry Alexander, ed, Constitutionalism
2 the best measure of a generation’s life span.2) If any law “be enforced longer, it is an act of force, and not of right.”3 Jefferson’s argument, in some form, goes back at least to Hume’s essay Of the Original Contract. It was a repeated refrain of Thomas Paine’s. Many others besides Jefferson made similar arguments at the time of the drafting and ratification of the Constitution; Noah Webster ridiculed Jefferson for not holding the principle more consistently. Jefferson’s principle remains, today, the central challenge to written constitutionalism—indeed perhaps to more than that, since much ordinary legislation is the product of earlier generations too. Jefferson’s argument is the starting point for many discussions about the nature of constitutionalism.4 But to this day it is not clear how to answer Jefferson’s argument. “This principle that the earth belongs to the living, and not to the dead is of very extensive application and consequences in every country,” Jefferson said. In our own legal culture, the questions are, among other things, why the generations who drafted the Constitution of 1787, or the Bill of Rights, or the post-Civil War amendments to the Constitution have a right to rule us today. Specifically, why do we care about their intentions, which are generally thought to have some importance to current constitutional controversies? And, more pressing, why do we even care about the documents they adopted, which everyone today would acknowledge to be in some sense authoritative? 2See Letter of July 12, 1816, to Samuel Kercheval, reprinted in xxx; see also Letter of Sept. 6, 1789. 3Letter of Sept. 6, 1789. 4Eg most of the essays in Larry Alexander, ed., Constitutionalism
Commands and Intergenerational Obligations In the american constitutional tradition most the answers that have been offered to these question take one of two general forms. One kind of answer asserts that the decisions of the earlier generations bind us in essentially the way that an order from a bureaucratic superior binds a subordinate. 5 Often this view seems to be not even asserted but assumed: people try to uncover what the Founding generations, or subsequent generations, thought about an issue, without explaining why that would be significant today A second, more complex kind of answer relies not so much on a simple model of superior and subordinate but rather on a conception of intergenerational identity. We owe"fidelity"to the earlier generations because we live in the same political community, extended over time, as they Just as part of being an American is acknowledging obligations of mutuality with others who live today, so part of being an American is te maintain continuity with those generations. One way we do that is to adhere, at least to some degree, to their decisions on questions of constitutional law. Many theories take this second form; some meld aspects of these two forms 6 The first kind of answer, with its simple austinian model-the Founders were the sovereign, and their commands bind us-seems at first glance just to refuse to engage Jeffersons argument. But this approach cannot be disregarded entirely. As Jefferson acknowledged, at least for a E. g. Bork: Easterbrook; cf Posner. Also"translation? Ackerman; Dworkin; Rubenfeld?; see Waldron on community extended ove time. Melding?: Amar. Tushnet Foreword
3 Commands and Intergenerational Obligations In the American constitutional tradition, most the answers that have been offered to these question take one of two general forms. One kind of answer asserts that the decisions of the earlier generations bind us in essentially the way that an order from a bureaucratic superior binds a subordinate.5 Often this view seems to be not even asserted but assumed; people try to uncover what the Founding generations, or subsequent generations, thought about an issue, without explaining why that would be significant today. A second, more complex kind of answer relies not so much on a simple model of superior and subordinate, but rather on a conception of intergenerational identity. We owe “fidelity” to the earlier generations because we live in the same political community, extended over time, as they. Just as part of being an American is acknowledging obligations of mutuality with others who live today, so part of being an American is to maintain continuity with those generations. One way we do that is to adhere, at least to some degree, to their decisions on questions of constitutional law. Many theories take this second form; some meld aspects of these two forms.6 The first kind of answer, with its simple Austinian model—the Founders were the sovereign, and their commands bind us—seems at first glance just to refuse to engage Jefferson’s argument. But this approach cannot be disregarded entirely. As Jefferson acknowledged, at least for a 5E.g. Bork; Easterbrook; cf Posner. Also “translation?” 6Ackerman; Dworkin; Rubenfeld?; see Waldron on community extended over time. Melding?: Amar. Tushnet Foreword
time a majority is entitled to rule. Any account of constitutional interpretation has to explain the undoubted binding force of a contemporaneous majoritarian decision. The second kind of answer asserting a conception of intergenerational identity is deeply woven into the way many people think about the Constitution. It speaks to something important. There is undoubtedly a human need, widely if not universally felt, to understand oneself as part of an ongoing tradition and to have a connection to earlier generations. This is often the way in which people understand themselves to be part of an ethnic group or a religious tradition. Many accounts that are implicitly offered to answer Jeffersons objection provide conceptions of what it is to be an American, conceptions that include fidelity to earlier generations decisions about the Constitution But the analogies to religious and ethnic identity ought to give us pause about using this kind of explanation for the binding character of the Constitution. People alive today in the United States, or any other reasonably heterogeneous community, will define the tradition to which they belong in different ways. Especially in view of the changes that have occurred over time, both immigration and the enfranchisement of a larger percentage of the population-changes that greatly exacerbate Jeffersons problem and that his account did not anticipate-relatively few people alive today are even descended from the people who participated in the great constitutional decisions of the past. Nearly all of us are being asked to accept decisions made by someone else's ancestors. We might choose to do so, but it is difficult to see why people should be required to identify with a tradition in that particular way
4 time a majority is entitled to rule. Any account of constitutional interpretation has to explain the undoubted binding force of a contemporaneous majoritarian decision. The second kind of answer, asserting a conception of intergenerational identity, is deeply woven into the way many people think about the Constitution. It speaks to something important. There is undoubtedly a human need, widely if not universally felt, to understand oneself as part of an ongoing tradition and to have a connection to earlier generations. This is often the way in which people understand themselves to be part of an ethnic group or a religious tradition. Many accounts that are implicitly offered to answer Jefferson’s objection provide conceptions of what it is to be an American, conceptions that include fidelity to earlier generations’ decisions about the Constitution. But the analogies to religious and ethnic identity ought to give us pause about using this kind of explanation for the binding character of the Constitution. People alive today in the United States, or any other reasonably heterogeneous community, will define the tradition to which they belong in different ways. Especially in view of the changes that have occurred over time, both immigration and the enfranchisement of a larger percentage of the population—changes that greatly exacerbate Jefferson’s problem and that his account did not anticipate—relatively few people alive today are even descended from the people who participated in the great constitutional decisions of the past. Nearly all of us are being asked to accept decisions made by someone else’s ancestors. We might choose to do so, but it is difficult to see why people should be required to identify with a tradition in that particular way
To put the point anothe way, the justification for using a written Constitution, and original intentions, should not be sectarian. It should-if possible--not depend on a particular conception of what it is to be an American. It should be something that can appeal to any reasonable member of our society today, even to people who reject (if they have reasons for doing so)the moral vision of earlier generations. The way to try to develop such a conception, I believe, is to recognize that the intuitive appeal of Jeffersons principle-that no generation has a right to bind another-rests, implicitly, on too narrow a view of the role of law Specifically, it overlooks important ways in which the decisions of earlier generations can be binding today even in the absence of any kind of obligation of obedience-either the straightforward obligation of a subordinate to a superior, or the more complex idea of"fidelity" to an earlier generation. There are at least two other possible reasons why one might care about what earlier generations did First, a decision made by an earlier generation might serve as a precedent. In a common law system, precedents from earlier eras bind to a degree. Nevertheless, the problem Jefferson identified is greatly ameliorated in a common law system, or so I shall argue shortly. And the justification for following precedent need not rely on any notion of intergenerational identity or intergenerational obligation. There are sensible reasons why any rational person would be reluctant to depart from well-established practices that were endorsed, after due consideration, by people in the past when they were confronted with similar issues Second, an earlier generations decision-especially when it is embodied in an authoritative text-can serve as readily-accepted common
5 To put the point anothe way, the justification for using a written Constitution, and original intentions, should not be sectarian. It should—if possible—not depend on a particular conception of what it is to be an American. It should be something that can appeal to any reasonable member of our society today, even to people who reject (if they have reasons for doing so) the moral vision of earlier generations. The way to try to develop such a conception, I believe, is to recognize that the intuitive appeal of Jefferson’s principle—that no generation has a right to bind another—rests, implicitly, on too narrow a view of the role of law. Specifically, it overlooks important ways in which the decisions of earlier generations can be binding today even in the absence of any kind of obligation of obedience—either the straightforward obligation of a subordinate to a superior, or the more complex idea of “fidelity” to an earlier generation. There are at least two other possible reasons why one might care about what earlier generations did. First, a decision made by an earlier generation might serve as a precedent. In a common law system, precedents from earlier eras bind to a degree. Nevertheless, the problem Jefferson identified is greatly ameliorated in a common law system, or so I shall argue shortly. And the justification for following precedent need not rely on any notion of intergenerational identity or intergenerational obligation. There are sensible reasons why any rational person would be reluctant to depart from well-established practices that were endorsed, after due consideration, by people in the past when they were confronted with similar issues. Second, an earlier generation’s decision—especially when it is embodied in an authoritative text—can serve as readily-accepted common
ground among people who otherwise disagree. 7 Sometimes, in the familiar formulation, it is more important that things be settled than that they be settled right. A legal provision can settle things, and sometimes the importance of settlement alone is enough to make the provision binding The binding force of the provision rests on its functional ability to settle disputes, and not at all on whether the entity that enacted the provision is entitled to obedience or“ fidelity.” Accepting the common law and common ground answers to Jeffersons argument does not require one to reject the other kinds of answers that have been offered. In particular the common law and common ground arguments are not inconsistent with the notion of intergenerational identity-the idea that part of being an American is honoring the decisions of earlier generations of Americans. One can hold a particular view of the importance of the Constitution in defining American identity and also accept the common law and common ground justifications. In fact, an intergenerational conception of the political community provides an additional reason for accepting those justifications A conception of English identity was an important part of the early common lawyers’ ideology8 But the common law and common ground justifications do not depend on any particular conception of American identity, any more than one has to accept the common lawyers'elaborate ideas about "the ancient constitution"of England in order to accept the common law of property or contract. The common law and common ground justifications for 7See, e.g., Michelman in Alexander, ed 8See, e. g, Pocock, The Ancient Law and the Constitution
6 ground among people who otherwise disagree.7 Sometimes, in the familiar formulation, it is more important that things be settled than that they be settled right. A legal provision can settle things, and sometimes the importance of settlement alone is enough to make the provision binding. The binding force of the provision rests on its functional ability to settle disputes, and not at all on whether the entity that enacted the provision is entitled to obedience or “fidelity.” Accepting the common law and common ground answers to Jefferson’s argument does not require one to reject the other kinds of answers that have been offered. In particular, the common law and common ground arguments are not inconsistent with the notion of intergenerational identity—the idea that part of being an American is honoring the decisions of earlier generations of Americans. One can hold a particular view of the importance of the Constitution in defining American identity and also accept the common law and common ground justifications. In fact, an intergenerational conception of the political community provides an additional reason for accepting those justifications. A conception of English identity was an important part of the early common lawyers’ ideology.8 But the common law and common ground justifications do not depend on any particular conception of American identity, any more than one has to accept the common lawyers’ elaborate ideas about “the ancient constitution” of England in order to accept the common law of property or contract. The common law and common ground justifications for 7See, e.g., Michelman in Alexander, ed. 8See, e.g., Pocock, The Ancient Law and the Constitution
constitutional obligation rely on arguments that should appeal to all reasonably members of the political community. The idea here is, of course Rawls's notion of the"overlapping consensus": people who have different ideas about intergenerational obligation, or American identity-or who reject such notions altogether--should still be able to say that the common ground and common law justifications make sense In this paper I will try to develop the common law and common ground justifications for adhering to the decisions of earlier generations These justifications, I think, answer Jeffersons question in a way that does not require people to accept a controversial conception of American quasi- ethnic identity. But these justifications also do not require people to be skeptical about such conceptions. People can go in different directions when they define"what it is to be an American, while all accepting the common law and common ground justifications for adhering to the Constitution That is the aspiration, in any event On a more concrete level, I will reach a few specific conclusions that might seem odd at first glance but that in fact are both plausible and fully in accord with our established practices. In fact, it is a strength of the common law and common ground justifications that it supports aspects of the legal culture that seem firmly rooted but that are very difficult to explain. For example, I will defend what might be seen as a kind of verbal fetishism: an attachment to the specific language of the Constitution, even if the language is being used for purposes that are unquestionably at variance with those of the people who drafted the language I will also defend what is commonly called law-office history: the selective use of historical sources to support a conclusion reached on other grounds, as
7 constitutional obligation rely on arguments that should appeal to all reasonably members of the political community. The idea here is, of course, Rawls’s notion of the “overlapping consensus”: people who have different ideas about intergenerational obligation, or American identity—or who reject such notions altogether—should still be able to say that the common ground and common law justifications make sense. In this paper I will try to develop the common law and common ground justifications for adhering to the decisions of earlier generations. These justifications, I think, answer Jefferson’s question in a way that does not require people to accept a controversial conception of American quasiethnic identity. But these justifications also do not require people to be skeptical about such conceptions. People can go in different directions when they define “what it is to be an American,” while all accepting the common law and common ground justifications for adhering to the Constitution. That is the aspiration, in any event. On a more concrete level, I will reach a few specific conclusions that might seem odd at first glance but that in fact are both plausible and fully in accord with our established practices. In fact, it is a strength of the common law and common ground justifications that it supports aspects of the legal culture that seem firmly rooted but that are very difficult to explain. For example, I will defend what might be seen as a kind of verbal fetishism: an attachment to the specific language of the Constitution, even if the language is being used for purposes that are unquestionably at variance with those of the people who drafted the language. I will also defend what is commonly called law-office history: the selective use of historical sources to support a conclusion reached on other grounds, as
opposed to historians history-a genuine effort to understand, in context, an earlier time. I will also suggest that, in interpreting the Constitution, the text of the document matters most for the questions that are least important. Finally, I will defend a version of Jefferson's view of majoritarianism: the idea is that a majoritys decision governs for a while but recedes as time passes Why Not sunset? Before doing so, it is worth considering Jeffersons own solution-that there should be an automatic sunset provision applied to all laws. In fact this solution only makes things worse. But at the same time it reveals two important things about the structure of the problem that Jefferson posed: it can be solved only by introducing an intertemporal element into interpretation, and that intertemporal element must be able to operate gradually over time The immediate difficulty with Jeffersons sunset solution is that it is hard to see how one can specify a non-arbitrary term of years for a provision to remain in effect. Jeffersons calculation that the magic period is 19 years is quite strange. But this difficulty is derivative of a deeper problem: What should the law revert to after a provision has expired? The law that existed before the provision was adopted is the product of an even earlier generation; there is, if anything, even less reason to impose that earlier law on the current generation. Ideally, after a provision expires, the law should become something that the current generation itself endorses. But how do we determine what that is? 8
8 opposed to historians’ history—a genuine effort to understand, in context, an earlier time. I will also suggest that, in interpreting the Constitution, the text of the document matters most for the questions that are least important. Finally, I will defend a version of Jefferson’s view of majoritarianism: the idea is that a majority’s decision governs for a while, but recedes as time passes. Why Not Sunset? Before doing so, it is worth considering Jefferson’s own solution—that there should be an automatic sunset provision applied to all laws. In fact this solution only makes things worse. But at the same time it reveals two important things about the structure of the problem that Jefferson posed: it can be solved only by introducing an intertemporal element into interpretation, and that intertemporal element must be able to operate gradually over time. The immediate difficulty with Jefferson’s sunset solution is that it is hard to see how one can specify a non-arbitrary term of years for a provision to remain in effect. Jefferson’s calculation that the magic period is 19 years is quite strange. But this difficulty is derivative of a deeper problem: What should the law revert to after a provision has expired? The law that existed before the provision was adopted is the product of an even earlier generation; there is, if anything, even less reason to impose that earlier law on the current generation. Ideally, after a provision expires, the law should become something that the current generation itself endorses. But how do we determine what that is?
Jefferson himself explained why it is so difficult to keep the law up to date, in the course of rejecting the argument that"the succeeding generationI]s.. power [to] repeal"a provision"leaves them as free as if the constitution or law had been expressly limited to 19 years only. "The power to repeal a law does not protect a later generation from the impositions of an earlier generation ITThe power of repeal is not an equivalent [to mandatory expiration] It might indeed be 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 propostion Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interest of their practical man that a law of limited duration is much more very constituents; and other impediments arise so as to manageable than one which needs a repeal These familiar problems of legislative intertia and public choice will plague efforts to replace an expired law with something reflecting the current generations views. Perhaps even after much more than Jeffersons 19 years, a majority of the society--composed of some survivors of the older generation that voted on the law and some members of the new generation that did not-want the old law to continue in effect. Or perhaps the view of the new majority is that the law should be modified, but not wiped from the books. The Civil Rights Act of 1964, for example, must be viewed today as the product of an earlier generation, and not just in a chronological sense. But simply"sunsetting "the Act-reverting to the pre- 1964 status quo-would surely be less in keeping with the current generations views than the 1964 Act is Given the problems Jefferson identified with relying on repeals, we could not view the failure to reenact the old law as a reliable indication that a current majority rejects it. And
9 Jefferson himself explained why it is so difficult to keep the law up to date, in the course of rejecting the argument that “the succeeding generation[’]s . . . power [to] repeal” a provision “leaves them as free as if the constitution or law had been expressly limited to 19 years only.” The power to repeal a law does not protect a later generation from the impositions of an earlier generation: [T]he power of repeal is not an equivalent [to mandatory expiration]. It might indeed be 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 propostion. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interest 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. These familiar problems of legislative intertia and public choice will plague efforts to replace an expired law with something reflecting the current generation’s views. Perhaps even after much more than Jefferson’s 19 years, a majority of the society—composed of some survivors of the older generation that voted on the law and some members of the new generation that did not—want the old law to continue in effect. Or perhaps the view of the new majority is that the law should be modified, but not wiped from the books. The Civil Rights Act of 1964, for example, must be viewed today as the product of an earlier generation, and not just in a chronological sense. But simply “sunsetting” the Act—reverting to the pre- 1964 status quo—would surely be less in keeping with the current generation’s views than the 1964 Act is. Given the problems Jefferson identified with relying on repeals, we could not view the failure to reenact the old law as a reliable indication that a current majority rejects it. And