Thomas Jefferson wrote a letter to James Madison
in 1789 in which he said that the earth belongs
to the living.
The earth belongs to the living, not to the
dead.
The dead have neither power nor rights over
it, one generation is to another as one independent
nation to another.
Jefferson's letter has often been quoted for
the proposition that we should not be bound
by the dead hand of the past, by the dead
hand of the Constitution.
That the Constitution should instead be interpreted
as a living, breathing document subject to
changing interpretations over time.
But what people forget is Madison's response.
In Madison's reply to Jefferson, Madison wrote,
“If the earth be the gift of nature to the
living, then their title can extend to the
earth in its natural state only.
The improvements made by the dead like the
Constitution form a debt against the living
who take the benefit of them.”
“This debt,” Madison continued, “cannot
be otherwise discharged than by a proportionate
obedience to the will of the authors of the
improvement - by a kind of originalism.”
Well, who's right, Thomas Jefferson or James
Madison?
This is the key question at issue today in
the debates over whether our Founders’ Constitution
continues to bind us today.
What Madison meant by the Constitution forming
a debt against future generations, he didn't
mean that this created sort of a requirement
of blind veneration.
After all, the Framers of 1787, were in some
respects rejecting the innovations of the
Founders of 1776.
They were rejecting some of the innovations
of the state governments between 1776 and
1787.
So, of course, we the people can always deliberate
and reflect upon the existing forms of government
and determine whether those existing forms
have room for improvement.
And if that's the case, then we can have another
Constitutional Convention, maybe we can have
some Constitutional amendments.
So by no means did Madison intend to convey
that we are blindly venerating the Constitution,
that we have a blind obligation to the Constitution.
We are however indebted to that Constitution
in so far as it creates this improvement upon
the natural condition of the world.
For it to create this debt against the living,
that doesn't mean that we have to like every
part of the Constitution.
It doesn't mean we have to like every provision
in it.
In the same way, that we are bound by the
laws enacted by Congress even if we don't
like the laws that Congress enacts, we believe
in our legal system, that so long as those
laws were enacted by a process that confers
sufficient legitimacy on the laws, we consider
them sufficiently legitimate to be binding
even if we don't like what they say.
Well, the exact same argument can be made
about the Constitution.
So long as the Constitution on the whole successfully
balances the two competing objectives of a
free government, self-government on the one
hand and the preservation of liberty on the
other, it is on the whole sufficiently legitimate
to be binding even if we don't like every
provision of it.
