Mr. Jefferson’s “Sovereignty of the Living Generation”

The Bicentennial of the American Revolution ought to be a time for restoring the dialogue between the spirit of the past and the spirit of the future in our national life. We commemorate our origins because our origins are intertwined with our destiny; memory is the reciprocal of hope, and conservation and change are essential to each other. “There is nothing real without both . . . ,” as Alfred North Whitehead once said. “Mere conservation without change cannot conserve . . . , mere change without conservation is a passage from nothing to nothing.”

The dominant tense in America has been the future. The nation began in revolt not only against the British Empire but against the empire of the past. It began with a fundamental commitment to redeem man from history, with all its accumulated guilts and terrors, and to place him in possession of himself. Nature eclipsed history as the director of human affairs. A curious national tradition arose, one whose libertarian principles contravened the force of tradition itself. In “the American Creed,” as Gunnar Myrdal once reminded us, “the principles conserved are liberal and some, indeed, are radical.” So, paradoxically, successive generations of Americans freely legitimated change at the cutting-edge of the future without changing much of anything in the venerable core of national values and goals. They were radical in 1776, and so they may still be; but in celebrating them we are all conservatives.

From the beginning, of course, there have been different orientations, prospective and retrospective, reforming and preserving—a party of hope and a party of memory—and much of our history centers on the conflict between them. Thomas Jefferson stood at the forefront of change during the Revolutionary Era; through him the idea of progress entered into the American democratic ideal, and he became the paramount symbol uniting the nation’s promise with its revolutionary birth. When he was 70 years of age, reviewing the great ideological conflict of his time for the benefit of John Adams, Mr. Jefferson saw it fundamentally as a conflict between the friends and the enemies of enlightened progress. “One of the questions you know on which our parties took different sides, was on the improvability of the human mind, in science, in ethics, in government, etc. Those who advocated reformation of institutions, pari passu, with the progress of science, maintained that no definite limits could be assigned to that progress. The enemies of reform, on the other hand, denied improvement, and advocated steady adherence to the principles, practices, and institutions of our fathers, which they represented as the consummation of wisdom, the acme of excellence, beyond which the human mind could never advance.” It was this faith that lay behind the most radical idea in the Jeffersonian catalogue: “the sovereignty of the living generation.”

II

Like most ideas this one germinated for some time before it came to birth. Jefferson was led to formulate it in September 1789 in the course of reflection on events of the preceding months inaugurating the French Revolution. As United States Minister to France, he observed these events closely; as a philosopher and friend of democratic revolution, he was more than a detached observer. In liberal circles at Paris he stood as the oracle of the revolutionary nation that inspired France. His advice was sought, and he gave it. He wished for France all the blessings of freedom and self-government, such as the Americans possessed, but cautioned that the country could not go from despotism to liberty all at once. Everywhere, during a residence of five years abroad, Jefferson saw the heavy hand of oppression. “The truth of Voltaire’s observation offers itself perpetually,” he wrote, “that every man here must be either the hammer or the anvil.” Once while on a country walk he fell into conversation with a poor laboring woman met along the way. Her melancholy tale vividly enforced upon his mind the wretchedness produced by aristocratic privilege and the concentration of property in a few hands. “I am conscious that an equal division of property is impracticable,” Jefferson reflected on this “little attend-rissement.” “But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property. . . . Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth,” he concluded, “is given in common stock for men to labor and live on.” America, fortunately, was a long way from the European condition, yet it was not too early to introduce safeguards against falling into it.

With the French Revolution this sentiment took on the precision of an idea. It became for Jefferson the rationale for sweeping social and political reform, and he laid it out in a long letter addressed to James Madison. “The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water,” he wrote. “Yet it is a question of such consequences as not only to merit decision, but [also to place it] among the fundamental principles of every government.” Setting out from the basic proposition “that the earth belongs in usufruct to the living: that the dead have neither powers nor rights over it,” Jefferson calculated the natural life of a generation during its majority. He consulted the mortality tables of the great scientist Buffon and arrived at the term of 19 years. He then gave three specific applications of the principle. First, as to property, above all landed property. Every generation had a natural right to labor on the earth. If one could “eat up the usufruct,” or withhold it from those to come, “the lands would belong to the dead, and not to the living.” Second, as to public debts. One generation could not be burdened with the debts of another. The enormous debts of the Bourbon monarchy had contributed to the French Revolution, just as those of Great Britain had earlier started the chain of events culminating in the American Revolution. Would it not be wise and just for France to declare in its new constitution that no debt could be contracted for payment beyond the term of 19 years? Indeed, would not this furnish “a fine preamble” to the first American law appropriating the public revenue? Not only, Jefferson thought, would such a provision save the people from oppressive taxes; it would also “bridle the spirit of war” by reducing the power to borrow within natural limits. Third, and most importantly, Jefferson applied the principle to the constitution and laws of government. “No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. . . . The constitution and laws of their predecessors [are] extinguished . . . in their natural course with those who gave them being. . . . 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.”

Such was Jefferson’s idea. He conceded to Madison that it might “at first blush . . . be laughed at as the dream of a theorist.” But, on reflection, his brilliant friend would surely find it sound. It would “exclude at the threshold of our new government the contagious and ruinous errors of this quarter of the globe, which have armed despots with means, not sanctioned by nature, for binding in chains their fellow men.” Once established, the doctrine would be seen as still another instance, like the Federal Constitution over which Madison had labored, of the triumph of reason over habit in the conduct of human affairs.

III

These American references, as has sometimes been observed, had the appearance of an afterthought in Jefferson’s essay. The idea could scarcely have matured in America. It was formed by European realities, specifically those of France in 1789, and urgently addressed that situation. At the time Jefferson wrote, he was under the care of his physician, Dr. Richard Gem, an elderly Englishman practicing in Paris, a friend of the philosophes, an ardent champion of the revolution; and “the sovereignty of the living generation” seems to have been a favorite sentiment with him. The naked sentiment, certainly, was not unknown to 18th-century political speculation. Locke and Rousseau had made the point that all men have an equal right to the earth; Adam Smith had extended the reasoning to “successive generations of men”; and David Hume had taken up the argument in order to refute it. No one before Jefferson, however, had given form and dress to the notion. And while it is true that his theory expressed the speculative fervor— the rage against the past— more characteristic of the French Revolution than of the American, we cannot brush aside Jefferson’s American references, The essay, after all, was sent to Madison, not to Mirabeau, and he was urged to “force” the idea into discussion in American councils. It found its place readily enough within the confines of Jefferson’s political philosophy. If men are by nature free and equal, no great leap of logic was necessary to argue that generations of men, in organized societies, are also free and equal, If the people are sovereign, if government rests on their consent, then that sovereignty must be a living presence, not something which, exercised once, is dead and gone forever after. Jefferson’s aversion to the claims of inheritance, his reforms in Virginia to make the laws work for the diffusion of property, his abiding concern to keep alive “the spirit of revolution” in the people, his commitment to the progress of mankind—for all this, and more, “the sovereignty of the living generation” might appear as the grand organizing concept. Although the French Revolution gave birth to the idea, it ought to be seen as an illustration of how that revolution enlarged and clarified Jefferson’s understanding of the meaning and the promise of the American Revolution.

Jefferson was back in the United States, about to become the country’s first secretary of state, when Madison offered his reflections on the theory. He did not laugh but gently suggested that for all its philosophical magnificence the doctrine was “not in all respects compatible with the course of human affairs,” and proceeded to a refutation that might have devastated anyone but Jefferson. Madison had earlier, in The Federalist, taken issue with his friend’s advocacy, in the Notes on Virginia, of frequent revision of the state constitution, since such continual change would “in a great measure, deprive the government of that veneration which time? bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.” Now Madison painted a frightful picture of the hazards of an interregnum every 19 years. If the rights of property became “absolutely defunct” at the end of a fixed term, the most violent class conflict must ensue, property values would depreciate, and industry would be deprived of the encouragement offered by stable laws. Although the earth might be viewed as a gift to the living, this could be true only of the earth in its natural state, said Madison, for the “improvements made by the dead form a debt against the living who take the benefit of them.” Finally, Madison argued, there was no way the theory could be practically applied. Generations were not fixed mathematical points, as on Jefferson’s model; they were, rather, like flowing waves, changing daily and hourly as new members were added to the society and old members taken from it. The only escape from the embarrassments of the generational theory lay in the doctrine of the implied consent of the living to the constitution, the laws, the obligations descending from the dead. None of this, Madison assured his philosophical friend, was meant to impeach the bolder truths contained in his “great plan”; but it would be some time, Madison concluded with charming understatement, before such truths, “seen through the medium of philosophy, became visible to the naked eye of the ordinary politician.”

As Jefferson himself turned his attention to the mundane affairs of the new government, he made no effort to “force” the doctrine into discussion. His great rival, Alexander Hamilton, hearing of it, thought that the doctrine aimed at the repudiation of debt and the destruction of property, But so far as it came into discussion in the ideological controversy of the 1790’s, it was in connection with the French Revolution. The leading English polemicist aginst the revolution, Edmund Burke, appealed to the authority of ancient laws and institutions—to the spiritual partnership of the dead, the living, and the unborn—and denounced mischievous democratic ideas which broke the bonds between one generation and another and rendered men “little better than flies of a summer.” Burke was answered by Thomas Paine, who helped to build the ideological bridge between the American and French revolutions. Paine and Jefferson had sometimes been together in Paris, and it is possible that “the sovereignty of the living generation” came into their conversation. At any rate, in The Rights of Man Paine employed the argument with withering scorn against Burke and on behalf of democratic revolution. “Every age and generation must be free to act for itself, in all cases, as the ages and generations which preceded it,” Paine wrote. “The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.” This great controversy reverberated through American politics, sharpened the opposing ideologies of Federalists and Republicans, and contributed to Jefferson’s own “revolution of 1800,” marked by his ascendancy to the presidency.

IV

Jefferson never attempted to institutionalize the theory, yet never abandoned it. Indeed, he often reasserted it, as in criticism of public financial policies that mortgaged future generations and, most notably, in champiening reform of the Virginia Constitution of 1776. That constitution, too conservative for Jefferson in its time, became an anachronism in the 19th century. It was unjust. Two-thirds of the adults then living had died by 1816. “This corporeal globe, and everything upon it, belong to its present corporeal inhabitants during their generation,” Jefferson insisted. “They alone have a right to declare what is the concern of themselves alone, and to declare the law of that direction.” Every constitution should be revised at generational intervals. It was the only substitute for atrophy on one side or violent revolution on the other. For “laws and constitutions must go hand in hand with the progress of the human mind. . . . We might as well require a man still to wear the coat which fitted him when a boy,” Jefferson declared, “as civilized society to remain ever under the regimen of their barbarous ancestors.” The same spirit presided over the birth of the University of Virginia, today still remembered as “Mr. Jefferson’s University.” It was by the advance of knowledge from generation to generation that the freedom and happiness of mankind were advanced, “not infinitely,” Jefferson said, “but indefinitely, and to a term which no man can fix or foresee.”

Given the delicate balance between theory and practice which Jefferson maintained in his politics, he probably never intended rigorous application of the doctrine, meaning it, rather, as a moral directive to society. And in this sense it entered into the spirit of American democracy. There is a Jeffersonian ring in Alexis de Tocqueville’s observation that in America “every man forgets his ancestors”—”each generation is a new people”—and the Burkian protest can be heard in Lord Macaulay’s solemn warning, “Your constitution is all sail and no anchor.” The doctrine was repeatedly invoked in the 19th century to justify the overhaul of state constitutions, just as Jefferson had invoked it in Virginia. Frederick Jackson Turner set forth a celebrated theory of American history which turned on the idea of extended genesis, of continuous rebirth and renewal as the frontier moved across the continent. Henry George, the great social reformer, made Jefferson the patron saint of the Single Tax founded on the natural right of equal opportunity to land. New Deal reformers in the 1930s made the doctrine part of their creed for remodeling the federal government; and one of Jefferson’s scriptures was engraved on the grand memorial erected to him in Washington. A directive toward democratic change, its appeal has generally been to liberals and radicals, yet even conservatives have found comfort in Jefferson’s denunciation of free-spending governments which burden posterity with the debts of the dead.

In our day Rexford Tugwell’s provocative book, The Emerging Constitution, has again called attention to the theory of generational sovereignty. The theory is as old as the United States Constitution, but no one before Tugwell had the audacity to apply it to the nation’s sacred covenant. The Constitution, he argues, is antiquated in concept, anachronistic in many of its provisions, and wholly unresponsive to the needs of modern society. It has no basis in the reason or will of the people; it lacks both vigor and credibility and is on the way to becoming a lifeless monument from the American past. Tugwell rejects as a shabby fiction the idea of “a living constitution,” that is, one resting on implied consent and adapted to every occasion by legislative, administrative, above all judicial improvization—rarely, by amendment. The conception of the Supreme Court as “a constituent assembly in continuous session,” to use Woodrow Wilson’s language, is seen as an impertinence in a democracy. Such a malleable, ad hoc constitution brings the nation perilously close to having no constitution at all. Like Jefferson, Tugwell maintains that the only alternative to the subversion of the process of free government is the periodic remaking of the fundamental law. “In a society as mobile and complex as ours,” he writes, “the Constitution ought never to be more than one generation old.” Without repeating Jefferson’s mathematical calculations, Tugwell settles on virtually the same generational term, 20 years; and, going beyond Jefferson, he would void every constitution by its own clause after 25 years.

V

So there is still some kick in Jefferson’s revolutionary idea. The instance of Tugwell calls up the larger question with which I began of the uses of the past in America. If the American Revolution was a revolt against the past—a leap into the future—ought not its bearings for us to be liberating rather than conserving, directed toward making the new rather than saving the old? The rationality of Tugwell’s position is unassailable on Jefferson’s terms, or perhaps on those of the Founding Fathers, who would doubtless be amazed to discover that their Constitution had endured to the nation’s third century. Yet, in 1976, it is hard to imagine a more foolhardy undertaking than the formation of a new constitution of the United States; and one is tempted to reply to Tugwell as Madison replied to Jefferson. Whatever the value of Jefferson’s assault on the vaunted “wisdom of ancestors”— the tyranny of the dead over the living—at the dawn of the age of democratic revolution, it loses a good deal in the gathering twilight. The party of memory has this to be said for it: the classic forms and principles it would conserve are the surest embodiment of authority, clarity, and coherence in a frenzied time, and without these enlightened progress is hopeless. The sense of tradition, of continuity with our origins, of creative dialogue with out past may offer the strongest basis of rationality we as a nation now possess. In today’s fragmented and tormented society, where there is so little consensus of belief or even consciousness of first principles, the values and institutions received from the past provide us with the principal source of legitimacy. And so, if we affirm Jefferson, we can no longer deny Burke.

Yet the spirit, if not the letter, of Jefferson’s bold proposition still speaks to us. A generation’s sense of obligation to the past is valuable only if it serves a greater obligation to the future. As Whitehead said, “conservation without change cannot conserve.” The same philosopher once wrote, “The art of free society consists in the maintenance of the symbolic code; and secondly in fearlessness of revision, to secure that the code serves the purposes which satisfy an enlightened reason. Those societies which cannot combine reverence to their symbols with freedom of revision, must ultimately decay either from anarchy or from the slow atrophy of a life stifled by useless shadows.” This is the Jeffersonian directive. In the case of America, the symbolic code has its core in what Myrdal called “the American Creed” and traced back to the American Revolution. The challenge in this Bicentennial season is neither to exalt nor to resign the code but to reexamine, redefine, and reconstruct it so that it might answer the purposes of the future after it has answered those of the past. For unless the code serves change we are indeed faced with the prospect of atrophy or anarchy. The long heritage of freedom in this nation is not just a thing to save—to be fenced about and decorated like a dead man’s grave—it is a thing to use. Jefferson understood this. “The earth belongs to the living, not to the dead.” Each generation is responsible for working out its own vision of freedom, always on condition of fidelity to the ends of freedom itself. “Nothing is unchangeable,” Jefferson intoned, “but the inherent and inalienable rights of man.” This is both the anchor and the sail; and it is his most enduring legacy 200 years after he wrote the nation’s charter of liberty.