Thomas Jefferson

T.J. the Anti-Originalist

By Chris Ricchetti | 16 September 2021

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 any individual ceases to be his when himself ceases to be, and reverts to the society.

Thomas Jefferson

Jefferson penned this declaration in Paris in a letter to James Madison on September 6, 1789, in which he examines the question of whether one generation has the right to bind another.

He goes on to say that the society may form rules for the disposition of land at death—to spouse, to children, to legatees, to creditors, etc. But there is no natural (i.e., no moral) right to a decedent’s property—not creditors, not even family have any moral claim to it. A legal successor’s interest, if any, is derived solely from the laws of the society of which they are members. It is a “municipal” (i.e., socially constructed) interest only.

Following a lengthy application of this principle to management of the public debt, Jefferson continues…

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.

In fact, Jefferson argues that laws should “sunset” automatically, so that inaction on the part of government would not perpetuate the status quo by default: “…a law of limited duration,” he says, “is much more manageable than one which needs a repeal.”

Thomas Jefferson never publicly advocated for an actual sunsetting constitution. Presumably, he regarded the amenability of the U.S. Constitution to be a more workable actualization of his usufruct philosophy. But mechanics of revision aside, there is little doubt that Jefferson was, by today’s standards, a radical, extremist anti-originalist, who intended a living, breathing, evolving constitution.

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