Play 1010 Jefferson Paper

No, Mr. Jefferson

No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. Every constitution then, and even every law, naturally expires at the end of 19 years.

        In an infamous letter, Thomas Jefferson advised that we should “provide in our constitution for its revision at stated periods.” Every generation should have the “solemn opportunity” to revise the constitution “every nineteen or twenty years,” allowing it to “be handed on, with periodical repairs, from generation to generation, to the end of time.” The Jeffersonian argument for generational revisionism is that the living should have the opportunity to think deeply about how their state governments are organized and how their rights are dispensed, because it could be conceivable that the original constitution was drafted in and for a bygone era, needing to be continuously updated to reflect each contemporary modern climate. His world was dynamic rather than static, as he would have wanted the constitution. And generational revisionism would have been yet another check and balance against government. He believed Americans needed to be vital stakeholders in our foundational documents in order to be good citizens.

        The rest of the Founding Fathers off-course disagreed, but took in mind his concerns. They provided for two ways to change the constitution: via amendment or via constitutional convention. The document can only be amended by votes of two-thirds of the House and Senate in addition to three-fourths of state legislatures, and a convention has never been convened, despite there being a movement in favor of one. The Constitution has, however, been amended twenty-seven times and it is much different as a result. The amendment process and judicial interpretation (e.g., desegregation, abortion, gay marriage) have altered the constitution and its interpretation in their own ways and allowed it to evolve in a very fine-tuned, gradual way in keeping with it’s fundamental principles. Changing the constitution every twentieth year would have been a terrible idea, and this paper will delve in to the why.

        Jefferson’s generational constitution would have been hugely destabilizing and highly reactive. Regarding the former, the country needs a sense of what the laws are going to be like 20 years from now. It needs a bedrock of political legality and morality from which everything else can be derived. Moreover, the country needs a fundamental legal structure, and opening up the possibility of changes to that core structure would make things much less predictable, whether the document was made objectively better or worse. The singular bedrock constitution has allowed for considerable stability and legal safety. And if the constitution changed generationally, lawmakers and politicians would hedge their bets on how best to administrate under possible forthcoming constitutions rather than the status quo one already in place. Politicians would introduce not-yet legal proposals, thinking the next constitution could allow for the necessary legalization and retroactive immunity. Furthermore, the sorts of changes that would come would likely be reactive, if not downright malevolent, in the sense that they would respond to particular and specific problems of the day. It wouldn’t have the longer-term view or outlook that such a universal document needs. In sum, it is healthy for society as a whole to know that some big important questions are basically settled.

        Madison’s response to Jefferson’s letter highlights many of the absurd effects of such a policy. For starters, many governmental programs and their corresponding costs are by nature multi-generational. For instance, if one generation’s government sold bonds to finance an infrastructure project, the next generation will incur the preceding’s’ obligation as well as recoup its corresponding benefits. If every obligation had a twenty year life-expectancy, the government would not be able to adequately run such programs. Essentially, it would have constrained debt —something Jefferson abhorred as an agrarian, despite its being necessary for economic growth, finance, and technological innovation. Jefferson was wrong on this front, while Madison and especially Hamilton understood federalism and economics. Madison also pointed out that it would be impossible to link a constitution with a generation, because children are born every day, adults die every day, and there’s never a threshold during which one generation ends and the next begins. In fact, it would probably take twenty years just to agree on a new constitution, and the necessary debates would both go on incessantly and prompt internal conflict. Thirdly, crafting a constitution —and especially a good one— is no easy task. Good ones are hard to come by and should be kept safe, not thrown into turmoil every few decades. Madison did a good job of explaining the impracticality of this notion to his dear comrade.

        Many bedrock laws are —and should be —largely considered monochrome rather than arbitrary. For instance, the laws against murder and theft or those which protect many individual liberties transcend time and place. These types of public laws are immutable and principle-based. As we discussed in lecture and discussion during the week of 4th September, the Founders cared so deeply about creating a timeless and sustainable government that was built on the democratic values they shared: protecting liberty and restricting power. They identified a set of principles by which to live and govern, and said principles are fixed in their decorum and should remain sacrosanct in order to protect one group from the potentially predatory conduct of another. Without these timeless principles, there could by tyranny by one population over another OR violence from a subjugated subset opposing their oppressors. It is best that freedom is codified such that there is no room for re-interpretation by potential tyrants. There was no need to change these universal principles, nor would the any of the founders want them to.