Tuesday, July 08, 2014

Roll Over C. P. Snow — Today, This Blog Supplies An Intro To Intergenerational Justice

An H/T to a reader Up North for sending along a link to Joe Romm's timely jeremiad for our troubled times. Joe Romm taught this blogger a new word — "usufruct" — as well as an entirely new take on the Declaration of Independence. If this is a (fair & balanced) undoing of the clash of the two cultures, so be it.

[x ThinkProgress]
The Declaration Of Interdependence And Jefferson’s "Brilliant Statement Of Intergenerational Equity"
By Joe Romm

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Two-hundred-and-thirty-eight years ago, the Continental Congress adopted the Declaration of Independence.

When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. [Emphasis supplied here and hereafter.]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

Okay, the Declaration of Interdependence sounds a lot like the Declaration of Independence.

By saying that it is a self-evident truth that all humans are created equal and that our inalienable rights include life, liberty, and the pursuit of happiness, our Founding Fathers were telling us that we are all in this together, that we are interdependent, that we have a moral duty to protect these inalienable rights for all humans. President Lincoln, perhaps above all others, was instrumental in making clear that the second sentence of the Declaration was “a moral standard for which the United States should strive,” as Wikipedia puts it.

The double appeal to “Nature” — including the explicit appeal to “the laws of Nature” in the first sentence — is particularly salient. For masters of rhetoric like the authors of the Declaration, a repeated word, especially in an opening sentence, is repeated for the singular purpose of drawing attention to it (see “Why scientists aren’t more persuasive, Part 1“).

Yes, the phrase “laws of nature” meant something different to Jefferson than it does to us (see here). But as a living document, and as a modern Declaration of Interdependence, the words have grown in meaning.

It is the laws of Nature, studied and enumerated by scientists, that make clear we are poised to render those unalienable rights all but unattainable for billions of humans on our current path of unrestricted greenhouse gas emissions. It is the laws of Nature that make clear Americans can’t achieve sustainable prosperity if the rest of the world doesn’t, and vice versa.

Moreover, founding fathers like Jefferson firmly believed we had an equal duty to future generations, as is clear from The Constitutional Law Foundation’s discussion of “Intergenerational Justice in the United States Constitution, The Stewardship Doctrine,” particularly the analysis of “Generational Sovereignty and the Land – The Earth as Tenancy-in-Common – Thomas Jefferson’s Usufruct”:

The most succinct, systematic treatment of intergenerational principles left to us by the founders is that which was provided by Thomas Jefferson in his famous September 6, 1789 letter to James Madison. The letter was Jefferson’s final installment in a two year correspondence with Madison on the proposed Bill of Rights. Given the importance of this letter as background material for the bill of rights, and its independent value as a brilliant statement of intergenerational equity principles, it serves as the natural starting point for a discussion of the founders’ views on specific intergenerational issues.

Because the legal term “usufruct” is obscure today to say the least, I will repost the CLF’s explanation of what Jefferson meant at the end. But let’s first return to the Declaration of (Inter)dependence.

Ironically — or perhaps intentionally — the toughest inalienable right to maintain is “the pursuit of happiness.” Certainly, the catastrophic global warming we know we face (thanks to our understanding of the laws of nature) threatens life and liberty (see “Syria Today Is A Preview Of Memorial Day, 2030“).

But if we keep listening to the deniers and delayers, if we fail to sharply reverse our current emissions path nationally and globally, then we are headed toward 5°C (9°F) planetary warming or more by century’s end and 850+ ppm — with sea level rise of 4 to 6 feet or higher, rising perhaps six to twelve inches a decade or more for centuries, the U.S. Southwest and one third of the Earth’s habited land a permanent Dust Bowl, a large fraction of species extinct, and much of the ocean a hot, acidic dead zone (see “An Illustrated Guide to the Science of Global Warming Impacts: How We Know Inaction Is the Gravest Threat Humanity Faces”).

Not bloody many people will be pursuing “happiness” under those conditions. They will be desperately trying to avoid misery, when they aren’t cursing our names for betraying our moral values.

If we don’t aggressively embrace the clean energy transition starting immediately — and help lead the entire world to a similar transition — then the Ponzi scheme we call the global economy destructive of these ends, it is the Right of the People to alter or to abolisy will probably be in some stage of obvious collapse by our 250th anniversary, July 4, 2026.

That whenever any Form of Government becomesh it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And so “happiness” is repeated also, underscoring its importance to the Founders. “Life” and “Liberty” are really the very minimum we owe our fellow humans. We have a moral obligation to work toward freedom from want and care for all.

Let me end with The Constitutional Law Foundation’s extended discussion of “Intergenerational Justice in the United States Constitution” and of Jefferson’s letter to Madison (for the CLF’s footnotes, click here):

Jefferson begins his letter by asserting that:

“The question [w]hether one generation of men has a right to bind another … is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government…. I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living’....”

Since Jefferson explicitly bases his entire philosophy regarding generational relations upon this “self-evident” principle, it behooves us to examine closely the precise language employed to express the principle. Of most importance is the single word: usufruct.

The legal concept of usufruct can be traced back at least as far as ancient Roman law and has changed little over the centuries. In Jefferson’s time, as now, “usufruct” referred to “the right to make all the use and profit of a thing that can be made without injuring the substance of the thing itself.” It was a term used to describe the rights and responsibilities of tenants, trustees, or other parties temporarily entrusted with the use of an asset — usually land.

Under the common law, the doctrine of usufruct is closely conjoined with the doctrine prohibiting waste, defined by Blackstone as “a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disheison of him that hath the remainder or reversion.” Taken together, these two doctrines provide that a tenant (or other caretaker/interest holder) is entitled to the beneficial use of the land and its fruits, but is prohibited from prejudicing future interest bearers by using the land in a way that destroys or impairs its essential character or long term productivity.

Jefferson’s philosophy that the earth belongs in usufruct to the living at least partially reiterates the biblical/Lockean paradigm of the earth as intergenerational commons, the fruits and benefits of which should be accessible to every member of every generation. He takes the position that no landholder has a natural right to control the land or dispose of it after his or her death. The land is entailed to the larger society; it reverts to the larger society upon the holder’s death. Society may choose to pass the land on to beneficiaries or assignees chosen by the original landholder, but there is nothing in natural law which requires this. “By an universal law, indeed, whatever, whether fixed or moveable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it.”

Society, as trustee of the earth, reasonably expects the natural estate to be returned undiminished at the end of each landholder’s tenure. Jefferson maintains that each individual, and each generation collectively, has the obligation to pass on his, her, or its natural estate undiminished and unencumbered to later generations:

“...[N]o man can by natural right, oblige lands he occupied … to the payment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead rather than the living, which would be the reverse of our principal. What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of the individuals.”

For Jefferson, “eating up the usufruct” means extinguishing the next generation’s ability to share equitably in the benefits of a natural resource. No individual or society has authority to cause such extinction, whatever personal or collective rights they may allege.

The CLF then makes clear how Jefferson’s concerns are all too relevant to the present:

The contemporary issue to which Jefferson’s arguments most literally apply is the problem of topsoil depletion. As a planter in predominantly agrarian Virginia, who tended to view wealth as the direct or indirect product of the earth, it was natural for Jefferson to phrase his discussions of intergenerational relations — even intergenerational economic relations — in terms of soil:

Are [later generations] bound to acknowledge [a national debt created to satisfy short-term interests], to consider the preceding generation as having had a right to eat up the whole soil of their country, in the course of a life...? Every one will say no; that the soil is the gift of God to the living, as much as it had been to the deceased generation; and that the laws of nature impose no obligation on them to pay this debt.

Jefferson asserts that each generation has the right to inherit, undiminished, the same topsoil capital that its predecessors enjoyed. Our society’s failure to recognize and defend this most basic principle of intergenerational fairness during the past century has resulted in topsoil depletion that has reached crisis proportions. Soon we may have literally and irreparably “eaten up the whole soil of our country.”

Of course, the principle applies to a myriad of resources other than soil. For instance, the extermination of a salmon fishery, through shortsighted hydropower, irrigation or logging policies, would also constitute an “eating up of usufruct,” as would the depletion of a freshwater aquifer that takes centuries to recharge itself.

Arguably the single greatest threat climate change poses to current and future generations is to the soil and to our ability to feed the ever-growing population of the world — for a literature review, see “My Nature Piece On Dust-Bowlification And the Grave Threat It Poses to Food Security.”

Jefferson’s attitudes on intergenerational obligation were far from anomalous. The same authorities that shaped Jefferson’s conception of the earth as an intergenerational commons — authorities such as Plato, the Old Testament prophets, Aquinas, Locke, and Sidney — also helped to shape the views of his contemporaries. The biblical notion that God granted the world to Adam and his posterity in common was part of mainstream English and American legal tradition. James Madison, the recipient of Jefferson’s seminal letter, while concerned that some of his friend’s intergenerational reasoning might be ahead of its time, felt that “the idea which the [letter] evolves is a great one….” In his exhaustive examination of Jefferson’s generational theories, Herbert Sloan remarks that, “what makes Jefferson’s views important … is not so much that he held them, but that they were widely shared.”

The conviction that no person could acquire a perpetual interest in the earth was also common coin. In his Agrarian Justice, Paine reminded his readers that:

“There could be no such thing as landed property originally. Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it: neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue.”

We live in perilous times. We must all hang together or we will surely all hang separately.

Happy Interdependence -Day- Century! Ω

[Joseph J. Romm is a Senior Fellow at the Center for American Progress, where he founded their climate blog, Climate Progress — part of their Think Progress website. Romm served as Acting Assistant Secretary (1993-1998) of the U.S. Department of Energy. He has written Hell and High Water (2006) and Straight Up (2010). Romm received both a BS and a PhD in physics from the Massachusetts Institute of Technology.]

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