Hey, Nineteen...
Not Steely Dan, this is an idea from Thomas Jefferson that our constitution should be revisited and revised every 19 years to clean the slate.
Since the Right Reverend Al brought up Jefferson and Madison, I’ve been thinking about these two and the crushing task they took on. Creating a new nation is no laughing matter, it literally can kill you.
Perhaps there is no one person more responsible for America than Thomas Jefferson. George Washington is thought of as the father of this nation, but while Washington was the muscle, Jefferson was the brain, and Madison was Jefferson’s conscience.
Carving a functioning nation out of a raw continent was a daunting and unsure prospect. Nothing was guaranteed to work, nor was the nation immune to influence of invasion, but as Jefferson was ever the philosopher searching for attainment of the best for America, he tried on many cloaks as he thought though the enormity of such an undertaking. To be sure, he believed different things in different stages of his life and as I have pointed out – without the moderation provided by his great friend, James Madison, he might well have been remembered differently. Jefferson was a man of the Enlightenment and was open to new ideas and believed in experimentation.
Many people whom I respect, have attempted to convince me that Thomas Jefferson would say the Constitution is rigid and that it should always be read as if it were passed down from the hand of God. We take this as gospel during these days of the mistaken and erroneous “progressive” idea of a “living” or “popular” Constitution and call it “originalism” or “strict constructionism”.
But what did Jefferson really think of the Constitution?
It seems that Jefferson was a little more flexible than many would suggests:
On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct [the legal right of using and enjoying the fruits or profits of something belonging to another – Author’s note.]. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. 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.–It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed 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 proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests 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.
– Thomas Jefferson, Letter to James Madison, 6 Sept. 1789
Jefferson was a strict constructionist in the sense that once ratified, there should be total respect and a very narrow reading of the document, but he saw the Constitution as a generational document that should change with the times.
Yes, Jefferson was saying that the Constitution should be changed every 19 years and “if it be enforced longer, it is an act of force, and not of right.”
Jefferson, in this letter, also advocates that the land should not be considered property in direct contradiction to the philosophy of John Locke:
I set out on this ground, which I suppose to be self evident, “that the earth belongs in usufruct to the living”: that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of it’s lands in severality, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee, or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be the reverse of our principle.
Our Constitution was a collaborative document, incorporating many positions, among them the ability to change it through amendment, a process made difficult for a reason while allowing deliberate change. This was a nod to Jefferson and his foresight that what was true in 1787 might not be so in 1887, 1987 or 2027 and that it was not in agreement with natural law for the dead to bind the living.
This is not the same as a “living” Constitution - what Jefferson recommends is a wholesale revision every 19 years.
Is there something worth considering in Jefferson’s ideas?
I’m not sure I buy that the Constitution should be revised every 19 years. We don’t want to be Italy that has had something like 90 governments in 70 years, but I can certainly believe a sunset provision should be applied to every law. Our voluminous laws certainly fit the idea they are an “act of force, and not of right.”
On the other hand, opening the Constitution to a mandatory revision every 19 years could be the worst alternative in a world of bad alternatives.
What say ye?
The wholesale revision idea was propounded when life-spans were much shorter than today’s. The ability to amend the document, seems to me, to be an adequate solution to the idea that some parts of the document have outlived their usefulness. The difficulty in amending the document was designed in to reduce the likelihood of changing it for trivial or transitory reasons.
A constitution reconstituted after the last 19 years would be as worthless as the woke culture those years have spawned. Seems 'self evident' that Jefferson never met George Soros.