If the past is another country, how about a declaration of independence?

by Chris Bertram on May 11, 2004

In a famous letter to James Madison, Thomas Jefferson “set out the problem of intergenerational sovereignty”:http://www.people.fas.harvard.edu/~bnjohns/jeff.html :it is as unjust for the dead to impose their laws on the living as it is for one country to impose its laws on another. In both cases, those subject to the laws are being obliged to obey legislation that they had no hand in formulating and have limited opportunity to repeal. As Jefferson points out, later generations may be burdened in all kinds of similar ways by earlier ones. So, for example, they may be held liable for the borrowing of their ancestors. But why should they be any more responsible for the repayment of such debts that the inhabitants of one country are for the repayment of the debts of another?

Jefferson’s solution to the problem was to apply the mortality tables of his own day to estimate the time that would need to pass after the enactment of a statute before a majority of citizens would be subject to laws they had not enacted. He proposed that after such a period, laws would either have to be renewed by the living or would lapse. (Jefferson’s estimate was 19 years.)

It is surprising that Jefferson’s problem doesn’t receive more discussion. The US Constitution, for example, continues to bind people more than two centuries after its enactment. For all the rhetoric about “the wisdom of the framers” it is hard to see how the decisions of a bunch of dead white men — decisions that it is incredibly hard to repeal — should continue to be authoritative over the present-day inhabitants of the United States who include people who not only had no hand in those laws themselves but may be descended from people who were (in virtue of being slaves) excluded from any possibility of participating in the decisions. (That last point is just a rhetorical flourish, btw, the key point is that the dead shouldn’t bind the living, whoever the living were descended from.)

The problem, and its solution, occupies the final chapter of Michael Otsuka’s “Libertarianism Without Inequality”:http://www.amazon.com/exec/obidos/ASIN/0199243956/junius-20 . Otsuka rejects both consequentialist and communitarian attempts to solve the problem, and opts instead for one based in Lockean tacit consent. Future generations can be bound by earlier ones if and only if they tacitly consent so to be bound, which they can do by remaining within the territory governed by the laws. But as Otsuka is very well aware (and it formed the subject of earlier chapters in his book), tacit consent as Locke sets it out in the _Second Treatise_ , isn’t really consensual at all. Given that people don’t really have a viable alternative to remaining within the state (as Hume famously points out in “Of the Original Contract”) it seems perverse to take their doing so as their consent to the laws. Otsuka’s key move, then, is to allow the problem of intergenerational sovereignty to give further weight to his own alternative to Lockean views on property.

I’ve discussed Otsuka’s conditions on tacit consent and on property acquistion before (“here”:https://www.crookedtimber.org/archives/000946.html and “here”:https://www.crookedtimber.org/archives/000687.html ). He’s how he expresses the connection to the problem of intergenerational sovereignty in the final lines of “Libertarianism Without Inequality”:http://www.amazon.com/exec/obidos/ASIN/0199243956/junius-20 :

bq. I have argued … that in order to ensure that tacit consent by residence is morally binding some fairly radical steps involving the egalitarian redistribution of worldly resources and the decentralization and pluralizing of political societies must be taken to ensure that such consent is freely given in circumstances of genuine equality. In the light of the fact that Jefferson’s own solution to the problem of intergenerational sovereignty cannot cover those who have just reached the age of majority … we can now see that we have good reason to move beyond the Jeffersonian proposal and toward the realization of those conditions of equality and plurality under which mere residence within the borders of society would constitute freely given, genuinely morally binding consent. The need to solve the problem of intergenerational sovereignty provides further grounds to realize the Lockean left-libertarian ideal of political society as a voluntary association.

Some thoughts:

(1) I’ve mentioned that Otsuka rejects consequentialist and communitarian replies to Jefferson’s problem. I’ve not gone into details here because I think such responses (which I have some sympathy with) are bound to surface in comments. So let them, and we can discuss the pros and cons.

(2) Jefferson’s problem arises (and arises especially sharply for Otsuka) because both Jefferson and Otsuka want to espouse a voluntarist account of legitimacy and obligation. But one reaction to both Jefferson’s puzzle and to the highly demanding conditions on tacit consent that Otsuka uses to resolve it withing the voluntarist paradigm is surely going to be to see all this as a _reductio_ of voluntarism. If this is where voluntarism leads us, then perhaps we should start our accounts of legitimacy, authority, obligation and so on somewhere else. If so where?

(3) I’ve drafted and redrafted this post to try to find a satisfactory way of ending it and can’t. So I’ll just finish with two questions. Is Jefferson’s problem really a problem? If it is, then is tacit consent (under suitable conditions) the way to solve it?

[This is the concluding — and long overdue — post, reading and summarizing “Libertarianism Without Inequality”:http://www.amazon.com/exec/obidos/ASIN/0199243956/junius-20 . Thanks to Mike Otsuka for his patience. Earlier posts contained my responses to chapters 1, 2 , 3 , 4, “5”:https://www.crookedtimber.org/archives/000946.html and “6”:https://www.crookedtimber.org/archives/001085.html . ]



tombo 05.11.04 at 8:55 pm

A rather surreal discussion in view of the source of Jefferson’s wealth and leisure. Perhaps his preoccupation with freedom for succeding generations had something to do with his unwillingness to grant freedom to his slaves during his lifetime?


Jacob T. Levy 05.11.04 at 9:24 pm

Is Jefferson’s problem really a problem? If it is, then is tacit consent (under suitable conditions) the way to solve it?

I’d put it differently. Jefferson’s problem is a real problem for consent theory. As, in different ways, Hume (inter alia Original Contract) and Madison (reply to Jefferson) both showed, no functional institutions can satisfy the stringent demands that Jeffersonian consent theory demands; and Jefferson is making a plausible extension to consent theory. Indeed, as you note, Jefferson’s problem is a special case of the core problem: tacit consent isn’t consent, and no actual state or state-like institutions can survive consent-based scrutiny if tacit consent isn’t consent.

It seems to me this must be a fatal problem for either consent theory or for the idea that any state could be legitimate. (I think consent theory ultimately must take us past John Simmons’ “Edge of Anarchy.”) Some people have taken the second tack; I incline toward the first. But Jefferson wants to square the circle. He wants government to be legitimate, to be legitimated by consent, and to insist that cross-generational tacit consent can’t count (without quite committing himself to the view that intra-generational tacit consent doesn’t count).


Russell Arben Fox 05.11.04 at 9:37 pm

A couple of responses to your final two questions, Chris:

1) Jefferson’s problem is a political one, but not a philosophical one. (Or, to borrow from how I just noticed Jacob put it, it presents a real practical concern–legitimacy–by way of pushing a philosophical concept–consent–into incoherence.) The supposedly oppressed Jeffersonian individual, tied down by generational obligations and arrangements she did not consent to, would have to be some kind of hypostasized being, able to identify and make definable the ongoing process of obligation and arrangement which any actual living involves. Laws become embedded in every life, through which they are made habitual, which consequently shape expectations; how is it that one can draw out the actual moment of imposition (“there, that’s the thing I didn’t agree to!”) when “impositions” themselves invariably become constitutive of those very individuals claiming to feel imposed? Taking Jefferson’s concerns completely at their word requires one to emply a strange ontology, to say the least. (Yes, this is a communitarian argument; I’d be interested to read exactly how it is that Otsuka dimisses it.)

2) That said, liberal societies circumstantially have to act in certain ways for their goods to be appreciated. But I doubt that any kind of tacit consent argument will ever work well enough to sustain those necessary actions. It simply won’t do for a liberal contract to be an ultimately tacit one; there must be a purposeful, collective and engaged element to it. Hence Rousseau’s criticism of the English (“free only during the election of the members of parliament”). Not that it’s easy to imagine any kind of general will that would easily satisfy and sustain all the elements and appurtenances of, for example, the whole American constitutional order. But at least Rousseau recognized what the baseline for a free political order is–the regular input and expression of every individual, through assemblies and public referenda, as part of the whole. This wouldn’t (and shouldn’t) have to involve starting from scratch every 19 years, especially not if you had active citizens. (Of course, this sort of populist/participatory wish may itself require the same sort of reworking of property that Otsuka advocates, though obviously for very different reasons.)


Elizabeth 05.11.04 at 9:52 pm

It seems obvious to me that inherited LAW is not the most pressing injustice; laws, though with some difficulty, can be changed. The real injustice is inherited liabilities, which cannot be disclaimed. For example, today’s young workers will spend their entire lives groaning under the burden of entitlements for the bloated, decadent and likely long-lived Boomer generation.

Every generation has its own special destiny; theirs is to be crucified on the cross of their own parents’ greed.


Jacob T. Levy 05.11.04 at 10:38 pm

For the record, since Chris linked to Jefferson’s letter: Madison’s reply is at http://www.constitution.org/jm/17900204_tj.htm. It’s one of my favorite exchanges in American political thought; taught it just two weeks ago. It’s the quickest route I know into the differences between Jefferson’s and Madison’s respective characters of mind: Jefferson as rationalist philosophe, Madison as aligned with all of Jefferson’s substantive politics but much more institutionally-minded, attentive to sentiment (“veneration”), and attentive to rationalism’s limits.


Decnavda 05.12.04 at 3:40 am

To resolve the delima of tacit consent to a government one has been born into, it is necessary to throw out the concepts of moral obligation and consent wholely free of the potential for violent coersion. Instead, one must apply to the government and the individual the same standards of consent to agreement that exist for contracting parties in a state of anarcy.

Soviegn states consently make treaties regarding such things as where the border between them lies. Usually, we speak of these treaties as being consented to by all signing parties, despite the fact that the enforcement mechanism is the various armed forces under the comand of the signers of the state – that is, the threat of violence between the signers themselves.

Likewise when two individuals meet in a state of anarchy and make agreements with each other as to what property they will respect as belonging to the other. If done amacably, we can say that the agreement was consented to by both, although again, the threat of mutual violence may have been a major factor that incentavised the negotiations.

So, assume we are in a state of anarchy. Within this state, there is a large organization of individuals who have mutually agreed with each other as to who owns what and what the rules of the organization are. They mutually maintain a large armed force that enforces their organization’s edicts, and they make war on those violate the property rights they claim for themselves. They call their organization the “United States Government”. One of their self-created rules is that anyone born within the territory they claim for themselves will be declared a “citizen”- that is, a member- of the organization. This declaration of course confers no moral obligations on the inidividual. It is however an offer of membership that the individual can accept or reject. Acceptance of this this contract is not by exchanging a promise, but by performance – the performance in this case is observance of the declared property right and obedience of its rules (“laws”). Such performance creates an obligation on the part of the organization to fulfill its promised protections of its members. The choice to accept or reject membership is continual: The inidivual can choose at any time to reject membership, and it does so by violating the rules of the organization. When the social contract is so rejected, the government is then free to choose to make war on this non-member to secure its self-claimed property.

Thus, the social contract should not be regarded as a completed contract that is morally binding on the individual, but as an ongoing offer to the inidividual, for which the consequences of rejection potentially include war.


Matthew 05.12.04 at 9:56 am

Surely future generations can repudiate inherited liabilities, at least in the form of government debt?


Thomas Dent 05.12.04 at 1:25 pm

Yes, huge budget deficits are entirely the fault of “bloated and decadent” people who had the misfortune of having been born in the 40’s, who are currently at the peak of their careers and approaching retirement, and have already caused a huge budget deficit simply by their very reprehensible bloating and decadence! Since, of course, every “bloated and decadent” person automatically adds an extra million dollars to the budget deficit by his or her mere existence.

Nothing to do with tax policy or military expenditure at all!

Christ, get a clue, will you?


Will Wilkinson 05.12.04 at 9:07 pm

Ghetto trackback: I comment on this post here


Elizabeth 05.12.04 at 11:49 pm

The size of today’s aggregate budget deficit has many sources, appropriate and inappropriate, Thomas. But entitlements for seniors are a different matter entirely.

Between 2000 and 2040, the cost of the three major senior benefit programs is due to double relative to the size of the economy, from 7.6 to 15.5% of GDP. 15.5% of GDP is about 75% of the entire federal budget. Absent reform, all other government spending — education, healthcare, poverty reduction, environmental protection, etc., will have to be drastically reduced and taxes will have to be raised to unprecedented levels. Should caring for the richest generation ever to retire be the sole function of the federal government? Have we no other priorities?

At the same time, the SS payroll tax is already the largest single tax paid by most American families. In fact, nearly 80% of Americans pay more in SS taxes than they do in federal income taxes.

I’m not saying anything new here; these figures are common knowledge and I’ve gotten them from the government itself. The problem is that while Boomers have their hands on the levers of power, these largely unfunded programs will only be expanded ($530 billion just this year). This isn’t unique to Boomers, 1950-72 Congress raised benefits or extended eligibility for SS 11 times (6 in election years). But unlike then, today everyone knows that this pyramid fraud played on the youth will come crashing down in a few years, and that the velocity of the crash is accelerated exponentially by Boomer demographics. However, it is these same demographics that make cutting (or refraining from expanding) senior benefits politically impossible. Boomers know that the music is about to stop, and they have no intention of being the ones without a chair when it does.

It is often said that there is a working under class oppressed an exploited by a wealthy over class. I contend that there is a wealthy “over generation”, the Me Generation, exploiting a numerically inferior “under generation” of workers. This generation has no champion, no protector, no one to make a Cross of Gold speech on its behalf. Nor will it.


Jack 05.12.04 at 11:50 pm

Matthew, of course they can but only at a price which might not be worth paying.

Thomas, who decided those tax policies? I think the point is they lived with a system that was manifestly unsustainable and which will be paid for by future generations who will not even benefit from similar welfare and retirement benefits.

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