Jefferson and Madison Letters: Should a Constitution Last Forever?

One day in the late winter of 1788 in Paris, the Marquis de Lafayette and two other champions of republicanism, Thomas Jefferson and Thomas Paine, held a little “convention of our own,” according to Lafayette. They were discussing the latest news from America about the debates taking place over ratifying the Constitution of 1787.[1] Jefferson missed the Constitutional Convention because at the time he was serving as U.S. Minister to France.

Although all three favored the Constitution’s adoption, reservations emerged. Jefferson and Paine objected to the abandonment of the principle of rotation in office embodied in the Articles of Confederation; under the Articles, delegates to the Congress were appointed annually by the legislatures of each state and could serve only for three years in any given six-year term. Paine, especially, objected to the long duration of the Senate’s terms under the new Constitution. But unlike Jefferson, Paine also expressed a distaste for a single executive. He later wrote, “Such a man will always be chief of a party. A plurality is far better. It combines the mass of a nation together. And besides this, it is necessary to the manly mind of a republic that it loses the debasing idea of obeying an individual.”[2]

But lingering in Jefferson’s mind was a larger question, one he decided had not been addressed. The following year, on September 6, 1789, he penned a now well-known letter to James Madison with a question about the new Constitution.[3] How long should it last?

On February 4, 1790, Madison replied.[4] Using excerpts of the two letters, an important debate over the future of American constitutionalism took place, one that exposed a clear fault line in the thinking of the two Virginians about the duration of a constitution.

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Jefferson wrote to 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. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; & that no such obligation can be so transmitted I think very capable of proof. 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, & reverts to the society. If the society has formed no rules for the appropriation of it’s lands in severalty, it will be taken by the first occupants. These will generally be the wife & 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. . . .
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, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. But persons & 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, & no longer. Every constitution then, & every law, naturally expires at the end of 19 years [Both Jefferson and Madison adopted the span of a generation as understood in their time]. If it be enforced longer, it is an act of force, & 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 had 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 & without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal & 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. . . .
This principle that the earth belongs to the living, & not to the dead, is of very extensive application & consequences.

In his response, Madison first summarized Jefferson’s argument, and then offered a rebuttal:

As the earth belongs to the living, not to the dead, a living generation can bind itself only: In every society the will of the majority binds the whole: According to the laws of mortality, a majority of those ripe at any moment for the exercise of their will do not live beyond nineteen years. To that term then is limited the validity of every act of the Society; Nor within that limitation, can any declaration of the public will be valid which is not express.
This I understand to be the outline of [Jefferson’s] argument.
The acts of a political Society may be divided into three classes.

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1. 1. The fundamental Constitution of the Government.
   2. Laws involving stipulations which render them irrevocable at the will of the Legislature.
   3. Laws involving no such irrevocable quality.

However applicable in Theory the doctrine may be to a Constitution, it seems liable in practice to some very powerful objections. Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interrogation?
In the 2d. class, exceptions at least to the doctrine seem to be requisite both in Theory and practice:
If the earth be the gift of nature to the living their title can extend to the earth in its natural State only. The improvements made by the dead form a charge against the living who take the benefit of them. This charge can not otherwise be satisfied than by executing the will of the dead accompanying the improvements.
Debts may be incurred for purposes which interest the unborn, as well as the living: such are debts for repelling a conquest, the evils of which descend through many generations. Debts may even be incurred principally for the benefit of posterity: such perhaps is the present debt of the U. States, which far exceeds any burdens which the present generation could well apprehend for itself. The term of 19 years might not be sufficient for discharging the debts in either of these cases.
There seems then to be a foundation in the nature of things, in the relation which one generation bears to another, for the descent of obligations from one to another. Equity requires it. Mutual good is promoted by it. All that is indispensable in adjusting the account between the dead and the living is to see that the debits against the latter do not exceed the advances made by the former. Few of the encumbrances entailed on nations would bear a liquidation even on this principle.
The objections to the doctrine as applied to the 3d. class of acts may perhaps be merely practical. But in that view they appear to be of great force.
Unless such laws should be kept in force by new acts regularly anticipating the end of the term, all the rights depending on positive laws, that is, most of the rights if property would become absolutely defunct; and the most violent struggles be generated between those interested in reviving and those interested in new modeling the former state of property. Nor would events of this kind be improbable. The obstacles to the passage of laws which render a power to repeal inferior to an opportunity of rejecting, as a security against oppression, would here render an opportunity of rejecting an insecure provision against anarchy. . . .
I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. It seems less impracticable to remedy, by wise plans of Government, the dangerous operation of this doctrine, than to find a remedy for the difficulties inseparable from the other.
May it not be questioned whether it be possible to exclude wholly the idea of tacit assent, without subverting the foundation of civil Society?
On what principle does the voice of the majority bind the minority? It does not result I conceive from the law of nature, but from compact founded on convenience. A greater proportion might be required by the fundamental constitution of a Society if it were judged eligible. Prior then to the establishment of this principle, unanimity was necessary; and strict Theory at all times presupposes the assent of every member to the establishment of the rule itself. If this assent can not be given tacitly, or be not implied where no positive evidence forbids, persons born in Society would not on attaining ripe age be bound by acts of the Majority; and either a unanimous repetition of every law would be necessary on the accession of new members, or an express assent must be obtained from these to the rule by which the voice of the Majority is made the voice of the whole.

Throughout his life, Jefferson remained steadfast to his principle that the letter of the law could not bind future generations. In 1810 he wrote: “To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty and property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”[5]

Clearly, Jefferson held the view that laws could be bent when necessary. (As president, he tested the constitutional limits of executive power on several occasions, especially with respect to his Louisiana Purchase). For him, only human (natural) rights remained immutable. There was little distinction between fundamental law, as in constitutions, or laws or other official actions so far as perpetuity was the question. All, in his mind, were meant to serve the living, even though he wrote in the Declaration of Independence that long-lasting governments should not be changed for “light and transient causes.”

On the other hand, Madison’s distinction between “express” and “tacit assent” regarding fundamental law was a conceptual device meant to allow foundational principles to persist while at the same time accommodating the ever-changing, often conflicting, will of the people. Simply changing a constitution periodically to serve a new generation’s needs, as Jefferson recommended, would only encourage “pernicious factions,” especially those arising in support of an ephemeral but overbearing majority, a chief worry Madison had explored in Federalist 10.[6]

For Madison, a constitution was superior to ordinary laws and politics. It was meant to last. Given the history of the United States Constitution to the present, even in the face of the most challenging political conflicts, it has so far proven resilient. Madison’s wish for the Constitution’s longevity has been fulfilled.

[1] Thomas Paine to Thomas Jefferson spring 1788(?), Founders Online, National Archives, founders.archives.gov/documents/Jefferson/01-13-02-0002.

[2] David Freeman Hawke, Paine (New York: Harper & Row, 1974), 184-185. The quote from Paine is from his famous (or infamous) letter to George Washington: Paine to George Washington, July 30, 1796, Founders Online, National Archives, founders.archives.gov/documents/Washington/05-20-02-0329.

[3] Jefferson to James Madison, September 6, 1789, Founders Online, National Archives, founders.archives.gov/documents/Madison/01-12-02-0248.

[4] Madison to Jefferson, February 4, 1790, Founders Online, National Archives, founders.archives.gov/documents/Madison/01-13-02-0020.

[5] Jefferson to John B. Colvin, September 20, 1810, Founders Online, National Archives, founders.archives.gov/documents/Jefferson/03-03-02-0060.

[6]Alexander Hamilton, James Madison and John Jay, The Federalist Papers, Garry Wills, ed. (New York: Bantam Classic, 1982), 42-49.