On Jefferson’s Proposed Solution to the “Dead Hand” Problem (and the Futility Thereof)

Thomas Jefferson once opined to his friend James Madison that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.”  These observations underlie the so-called “dead hand” problem of constitutional theory.  The problem is this:  Why should we the living generation of the present be governed by the constitutional dictates of dead people from the past? What gives those people the authority to rule us from the grave?

To Jefferson, these questions were unanswerable: The dead, on his view, had no right to rule from the grave, which in turn meant that “no society can make a perpetual constitution, or even a perpetual law.” But that conclusion raised a further question of its own: namely, how should we the people of the present design a constitutional system that defuses the threat of dead-hand rule down the road.  Jefferson’s answer was simple: Require that “every constitution . . . , and every law, expire after 19 years,” at which point the new generation of the living would acquire the prerogative to choose a new constitutional system for itself.  (I should note, by the way, that Thomas Paine had a few years earlier endorsed a similar solution, tethered to a 30-year, rather than 19-year, sunset term.  I apologize to the Paine estate for not featuring Tom P. more heavily in this blog post.)

Madison responded to Jefferson by suggesting that he had prescribed a cure way worse than the disease. Even if “in [t]heory” Jefferson’s solution would suffice to disempower the dead hand of the past, the repeated rebooting of our constitutional system would “in practice” give rise to some significant problems of its own. Specifically:

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?

All good points, for sure.  But there is, I think, a further problem with Jefferson’s 19-year sunset proposal: it wouldn’t actually eliminate the problem of dead-hand control. Here’s why:

An initial difficulty relates to the ever-present workings of legislative inertia, path dependence, and other political forces that push in favor of the status quo.  Jefferson alluded to these phenomena in explaining his view that guaranteeing to the living generation a right to repeal previous enactments was not enough to remove the specter of dead-hand control. Even with such a right of repeal in place, Jefferson argued, the living generation would still have to overcome “[f]actions,” “[p]ersonal interests,” and other “[v]arious checks” on the lawmaking process—checks that would frustrate its ability to achieve desired changes to the laws of its predecessors. But having described these “impediments” to change, Jefferson then failed to explain why they would magically disappear upon the sunsetting of a 19-year Constitution. Nor do I suspect he could have:  It seems implausible to think that just because a Constitution has formally “expired,” real-world status quo biases will fall by the wayside as well.  That, in turn, suggests that the “new” constitutional order of a present-day living generation will in many ways resemble the old constitutional order it purports to replace. And if so, then the shape and substance of the “new” constitutional order will still bear the signature of—you guessed it—the dead hand of the past.

But even with these concerns put to one side, Jefferson’s proposal suffers from a more serious defect.  To see the point, suppose that we the people of the present are rocking along in Year 18 of a Jeffersonian Constitution, generally satisfied with our constitutional system and not especially eager to re-litigate a whole bunch of delicate political compromises we’ve hashed out over the previous few years. Can we proceed with business as usual?  No.  Our predecessors have hardwired into our Constitution a sunset provision that will go into effect next year.  Much to our chagrin, that choice of theirs will soon impose upon us the burdensome task of rewriting our laws anew. “That darned dead hand!” we exclaim, shaking our (living) fists at the underworld down below.  “We don’t want to have a new constitutional convention, but it’s forcing us to do so!”

Now, we might be able to deal with this problem by adopting a constitutional amendment that prevents the sunset provision from going into effect. But that is just another way of saying that the living generation is always able to repeal the laws enacted by its predecessors.  And that proposition, recall, was not good enough for Jefferson, who sought for the present generation not just a right to repeal bad laws, but also a freedom to “manage” the earth in a manner unconstrained by the past.  In my hypothetical, however, that freedom is not total.  The dead-hand prevents the living generation from engaging in its preferred management strategy of letting sleeping dogs lie.

We can put the point more generally: no matter how valiant the efforts of one generation to avoid influencing the legal choices of its successors, the current generation simply must decide whether to throw its lot with the (future) proponents or (future) opponents of constitutional change.  Enacting a perpetual Constitution into law will favor the future opponents of change, whereas enacting a temporary Constitution into law will favor the future proponents of change.  The dead hand constrains in each scenario; its thumb (as it were) must go on the scale either for or against down-the-road adherence to the status quo.  Consequently, when a future generation confronts the decision whether to keep or discard the constitutional arrangements of its predecessors, its decision will be determined—at least in part—by a legal choice that the predecessors made.

None of this is to say that the choice between a temporary and permanent Constitution is an unimportant one; it is an important choice, precisely because of the different ways in which it will affect the likelihood of constitutional change at some future time. But it is not a choice that affords the present generation the option of disclaiming responsibility for what happens in the future. What we choose today affects the world of tomorrow—that’s as true in law as it is in life more generally.  In both contexts, it seems, we are destined to become “boats against the current, borne back ceaselessly into the past.”

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1 Response

  1. Mike Zimmer says:

    How about starting anew, even assuming path dependence, etc., after 225 years? We can’t fully escape the past but the average life span of a constitution, as I recall Tom Ginsburg establishing, is about 20 years. Have we taken a good thing way to far down the road?