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. … Every constitution then, & every law, naturally expires at the end of 19 years. 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: 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.Richard Tuck points out in Active and Passive Citizens (pp. 60-61) that Condorcet made more or less the same argument in his “On the necessity of a ratification of the constitution by the citizens.” He proposed that all constitutions sunset automatically after 20 years:
Any law accepted by the plurality of the inhabitants of a nation can be taken as having unanimous support: given the need to accept or to reject the law and to follow the plurality opinion, anyone who rejects a proposed law will already have decided to abide by it if it is supported by the plurality … But such approval becomes meaningless as soon as these individuals cease to form a plurality of the nation … I consider it very important to set a maximum period for which a law can remain irrevocable. People no longer dare claim that there can legitimately be perpetual laws.In his reply, Madison offered the following objections to Jefferson’s proposal. First, a constitution subject to regular sunsetting would be too unstable for responsible government:
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 interregnum?Second, might not the living owe duties of obedience to the dead in virtue of the good benefits they have inherited?
The improvements made by the dead form a debt against the living who take the benefit of them. This debt cannot be otherwise discharged than by a proportionate obedience to the will of the Authors of the improvementsThird, why couldn’t continuing obedience derive from a kind of Lockean tacit consent?
And fourth, would not legal instability benefit, surprisingly, the wealthiest citizens at the expense of the poorest?
The frequent returns of periods superseding all the obligations depending on antecedent laws and usages, must be weakening the reverence for these obligations, cooperate with motives to licentiousness already too powerful; and that the uncertainty incident to such a state of things would on one side discourage the steady exertions of industry produced by permanent laws, and on the other, give a disproportionate advantage to the more, over the less, sagacious and interprizing part of Society.Some of these points were also made by Madison in a pair of Federalist Papers. In Federalist 49, he rejects Jefferson’s proposal in the Notes on the State of Virginia to call a new constitutional convention whenever so favored by two of the three branches of government. He again appeals to the need for reverence for the laws:
as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.In Federalist 62, he offers the following critique of institutional instability:
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.
(As an aside, it is striking that Madison objects to constitutional/legal volatility both on that grounds that such volatility undermines property rights and because legal uncertainty allows the wealthy to exploit the laws to their private advantage).
This is an interesting debate here over the legitimacy and desirability of constitutional stability. The Jeffersonian position continues to inspire some democratic theorists. Tuck, for example, favors generational referenda on fundamental constitutional questions (Brexit, for example). My friend Leah Downey similarly argues that the Federal Reserve’s charter should automatically expire at some regular interval (the original practice was a 20 year charter). Such a requirement for regular, legislative rechartering would allow for iterative democratic control over monetary policy.But another feature of Jefferson’s letter is less often discussed. The constitution is one means by which the dead can tyrannize the living. But Jefferson’s letter is equally concerned with intergenerational public debt.
suppose that Louis XIV and XV had contracted debts in the name of the French nation to the amount of 10,000 milliards of livres, & that the whole had been contracted in Genoa. …. Must the present generation of men have retired from the territory in which nature produced them, & ceded it to the Genoese creditors? No. They have the same rights over the soil on which they were produced, as the preceding generations had. They derive these rights not from their predecessors, but from nature. They then and their soil are by nature clear of the debts of their predecessors.While it is true, Jefferson notes, that private debts on land do descend from one generation to the next, that is because of positive not moral law. The state has the right to set such laws as they relate to the inheritance of property. But no comparable sovereign has the legitimate authority to set such laws among nations OR generations:
Again suppose Louis XV & his contemporary generation had said to the money-lenders of Genoa, give us money that we may eat, drink, & be merry in our day; and on condition you will demand no interest till the end of 19.5 years you shall then for ever after receive an annual interest of 12⅝ per cent. The money is lent on these conditions, is divided among the living, eaten, drank, & squandered. Would the present generation be obliged to apply the produce of the earth & of their labour to replace their dissipations? Not at all.
between society & society, or generation & generation, there is no municipal obligation, no umpire but the law of nature. We seem not to have percieved that, by the law of nature, one generation is to another as one independant nation to another.While there may be good prudential reasons for republican France to honor the debts incurred by the Ancien Regime (just as there were good prudential reasons for the new national government in America to assume the war debts of the several states), there is no binding natural duty to pay these debts. It should be said that Jefferson muddies the water a bit by discussing the inheritance of public debts from the French monarchy to the French Republic. But by insisting that generations relate to one another as foreign countries, he makes clear that the same analysis applies to intergenerational debt incurred by the Republic.
In line with a long tradition of republican hostility to public debt, Jefferson goes on to warn that a reliance on credit for public financing will fuel the “spirit of war.” Kant, for example, makes the same point in Perpetual Peace, whose fourth article prohibits debt-financed military expenditures.
It is rare today to hear Jeffersonian democratic critiques of public debt. But the logic continues to make sense. Public debt is a means of funding today’s spending with borrowed money. The duty to repay that debt constitutes a serious (potentially crippling) constraint on future governments, thus constraining their democratic power to set economic policy. Libertarians and conservatives often do critique public debt in terms that sound a bit like this. But their objection does not tend to center on the democratic illegitimacy of binding the future. To the contrary, people like Hayek and Buchanan favor constitutional constraints on both the present and the future to block what they take to be imprudent economic conduct. And of course Burkean conservatives revolt at the suggestion that children relate to their parents as foreign nations.
Wolfgang Streeck probably comes closest among contemporary theorists in offering a Jeffersonian democratic critique of public debt. In Buying Time and How Will Capitalism End?, Streeck traces the evolution of the traditional “tax state” into the “debt state” and finally into the “consolidation state.” The political difficulty of tax-financed welfare spending combined with the availability of cheap credit from global financial markets led to a dramatic growth in public debt since the 1980s. Those incentives in turn allowed for large debt-financed public spending consistent with an increase in economic inequality:
The rise of the debt state took place simultaneously with a general increase in economic inequality and was closely linked to it. The declining taxability of capitalist economies in the course of ‘globalization’ produced a rising demand for credit on the part of governments, while tax cuts for the increasingly rich increased the corresponding supply. As a result, the debt state found it convenient to substitute credit for ever more difficult-to-collect taxes, to the extent that citizens remained willing to consider government bonds a safe investment. States going into debt allow citizens with high incomes to keep their money instead of having it confiscated, invest it safely, collect interest on it, and pass it on to their children … the rich in rich democracies are not necessarily opposed to government debt since the alternative may be higher taxes, especially for them. (How Will Capitalism End? p 121)While Streeck’s analysis is consistent with some public-choice models of political behavior, he rejects anything like Ricardian equivalence between debt and taxation. It is easy to see why absent Ricardian equivalence these debt states tend toward fiscal crisis. Streeck argues that in response to that crisis, debt states embrace fiscal discipline and austerity to secure the confidence of creditors in financial markets and supranational institutions.
Streeck’s account of this transformation raises obvious problems for democratic sovereignty. The tax-state is able to take clear democratic responsibility for its choices of public spending. The debt-state pursued the promise of cheap public finance without the need to make difficult political choices surrounding taxation. Yet the result, the consolidation state, is now constrained by impersonal credit markets and unable to enact anything like the public will. It is for this reason too that technocratic bodies like independent central banks take on newfound primacy in matters of economic governance. I take all this to be a modern update of a Jeffersonian, democratic critique of public debt. Like an entrenched constitution, the argument goes, credit-financed public spending illicitly chains the future.