DRAFT 13 Apr Please do not cite or quote without permission Common Law, Common Ground, and Jeffersons Principle David A. strauss The earth belongs to the living The earth belongs in usufruct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on various versions of this paper ILetter of Sept. 6, 1789, to James Madison, reprinted in xxx.DRAFT 13 Apr Please do not cite or quote without permission Common Law, Common Ground, and Jefferson’s Principle David A. Strauss* “The earth belongs to the living” “The earth belongs in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