Why does one generation, long dead and gone, have a right to bind another? Thomas Jefferson famously made this argument in a 1789 letter to James Madison: “I set out on this ground which I suppose to be self evident,” Jefferson wrote from revolutionary Paris, “‘that the earth belongs in usufruct to the living;' that the dead have neither powers nor rights over it . . . . [B]y the law of nature, one generation is to another as one independent nation to another.” This letter from Jefferson is well known: it is often quoted for the proposition that we should not be bound by the “dead hand of the past,” that a constitution that is not a “living, breathing document” is not a legitimate constitution worthy of our obedience today.
***
Many, in other words, have heard of Jefferson's letter, and it has come to symbolize a potent criticism of interpreting the Constitution as it was originally understood and of the Constitution itself. It has come to represent the notion that the Constitution is woefully outdated and should not be binding upon us today. Fewer have heard James Madison's response to Jefferson. But his response makes a powerful case for constitutional obedience.
