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Sunday, August 26, 2012

Liveblogging Madison and Jefferson: Jefferson Versus Original Intent

"Jefferson believed that one generation could not be trusted to safeguard the interests of the next... the people deriving benefits from the federal Constitution had to be the living users of the text. The Constitution's meaning could not be stagnant; it's understood benefits had to be progressively redefined. 'No society can make a perpetual constitution, or even a perpetual law'... He meant, too, that there was no original intent: the founding generation could not make the Constitution into a property monopolized by its authors, eternally empowering themselves to control its value and application." -- Madison and Jefferson, p. 205

9 comments:

  1. "there was no original intent"

    Gene, maybe you can help me out here, because I'm confused. As I understand it Jefferson actually formulated the document that specified the nature of governance for this country. I consider that original intent because he's the one that wrote the document. I.e. he's the originator. As I've read this blog post, it seems Jefferson doesn't believe there should be an original intention for the specifications he declared. Am I reading this correctly?

    I must say, very interesting post here, regardless of my interpretation problems.

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    1. As I understand it Jefferson actually formulated the document that specified the nature of governance for this country.

      You are mistaken. Jefferson did not take part in the drafting of the Constitution. He wasn't even in the country at the time.

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    2. I should have made myself clearer. I was referring to the Declaration.

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    3. Jefferson said you can't have perpetual constitutions or laws. It doesn't follow from that that you can't have perpetual principles or ideals, such as those contained in the Declaration.

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  2. FYI, these statements mean nothing to me. I would want to see quotes from Jefferson backing up his interpretation. The one quote provided would be consistent with someone who believes in original intent.

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    1. http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html

      So the link above is the letter he wrote to Madison containing that quote. The quote starts at the ninth paragraph.

      Ok, so I'm not sure Krugman would be too happy with the argument Jefferson makes here, but he was making an argument against generational debt obligations, saying this, "But with respect to future debts, would it not be wise and just for that nation to declare, in the constitution they are forming, that neither the legislature, nor the nation itself, can validly contract more debt than they may pay within their own age, or within the term of 19. years?"

      Two sentences later he says, "that succeeding generations are not responsible for the preceding." From there Jefferson immediately states the quote provided in Gene's post.

      I think this quote about sums it up: "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."

      So the authors here declare this "no original intent". Fine, I wouldn't necessarily describe it as that, but it is nothing more than a preference in phrasing. It seems Jefferson was wholly worried about future generations not being burdened by the preceding, and this letter to Madison is one where he makes that case.

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    2. The phrased it oddly. But Jefferson clearly believed that *whether or not* we can detect some original intent, it doesn't matter: each generation has to interpret the Constitution for itself, and the original creators lack any authority to bind later generations.

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  3. Gene,

    Have you read Randy Barnett's Restoring the Lost Constitution? Barnett deals explicitly with the "dead hand" objection to originalism (to my mind quite persuasively).

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  4. "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

    I think that this quote leaves no doubt that Jefferson believed that it is the people that determine their own lives, nothing else. So, I don't think that it is surprising that he would also have the same opinion with respect to the constitution. After all, it is the people who decide whether to even acknowledge the existence of a constitution. A constitution sounds good in theory, but in practice it will always be an abject failure.

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