April 8th, 2009

Intergenerational Impositions


photo credit: Simio Sapiens

A feeling shared by the more idealistic of libertarians is that implicit contracts should be done away with, meaning that a person should only be bound by law to which he has affixed his signature, and therefore, his explicit, stated consent. Any other type of agreement or legal framework, under this theory, would be oppressive and uninvited. Thomas Jefferson—himself a fan of this political paradigm—once opined that revolution should be conducted on a per-generation basis, ostensibly in order to ensure that the government remained responsive to the will of “We, the People”.

A tamer Jefferson had already allowed for such a possibility in the Declaration of Independence, where he and his co-signers affirmed that individuals had the right to alter or abolish their government if its actions were to be found destructive to liberty. This group of people had considered their government to be tyrannical and unsuited for their desire for self-governance, and thus steps were taken to foster and fight for that liberty they desired.

The result, of course, was independence through bloodshed and a codified set of laws called the Constitution. Open to amendment—and thus a pliable and “living” document—this legal document bound its contractual partners according to its terms from the time of its ratification onward. It was forged in heated debate and a bit of compromise, and insulated slightly to prevent the passions of the people from too easily altering its decrees.

But what of this libertarian utopia of explicit contracts? In such a world, the Constitution would have only bound the individuals able to vote at the time and thus, through the representative process, give their consent to its mandates. It would have had a sunset clause affixed, whereby its provisions would expire completely at the end of X number of years (X being an arbitrary number subject to debate, since generations are not defined spans of time, and because new people are born each day).

The main argument here is that one generation of individuals has no right to subject their children to the laws to which they themselves agree to be bound. Now, if we were talking about something like debt, I would wholeheartedly agree. It is immoral and unconscionable for us to pass on trillions of dollars of debt to our children, currently amounting to $186,717 for every man, woman, and child. Our posterity, if left bound by our manufactured financial bondage, has no recourse for the chains and fetters we have already created for them.

But a legal system is different, insofar as the rising generation is able to “alter or abolish” any provision of government with which they disagree. If Americans in 2030 decide that they would prefer to live without a Department of Homeland Security, for example, under our current form of government they have every right and recourse to see that it is dismantled (and hey, I wouldn’t argue with that…).

The simple reality of the situation is that a sunset clause on every law would be absolutely untenable. Chaos would result from continually changing laws; uncertainty and lack of confidence would abound from ignorance regarding what laws are actively on the books; people would take advantage of the system; and lame duck legislators would wreak havoc. In short, the laboratory experiment of liberty in America would be limited to a petri dish culture of continual trial and error, to be cheaply cast aside when it’s time for the next iteration.

Sunset laws are wholly unnecessary, and are only promoted to compensate for voter apathy and an indifferent citizenry. All laws are subject to change at any time, but only if there is sufficient support among people to make it happen. Thus, the only imposition on the rising generation is a self-imposed one born of an unwillingness to participate in the political process to the extent necessary to effect change.

To be sure, the blame here is—and the focus of irate libertarians should be—the people themselves. There is, perhaps, more to fear from continually changing legislation than there is from time-tested doctrines of political wisdom. Granted, there are some (many?) laws that have enjoyed support for decades which are wholly antithetical to liberty and good government. But the body of legislators which do not now oppose those laws (and thus change them) is unlikely to substitute in their place a better alternative were they to have had a sunset clause attached. One need only look some of the concerns of a modern constitutional convention to understand why sunset clauses attached to every law would likely be a poor decision.

Additionally, the revocation of all previous and higher laws leaves a wide open door through which aspiring dictators would easily and quickly be able to assume power with little to no resistance. This increased possibility alone is far more of an intergenerational imposition than is a set of laws well debated, tested, and documented. Jefferson argued for continual revolution, apparently not remembering that the government (ideally) serves the people. If at any time the government becomes an unruly beast, its master, the people, may rise up and demand compliance. That it has not happened thus far either means that the people enjoy what they currently have, or that they are too indifferent to care.

The revolution Jefferson advocated need not be against the government, for we are the government. The real revolt, then, must be an inward one—against our apathy, our historical ignorance, our misplaced priorities, and our hypocrisy. Only in these substandard circumstances would we worry about imposing our oppressive laws on the rising generation. The Founders’ children no doubt welcomed the blessing of liberty the Constitution afforded them, and progressed immensely under its protections. Likewise, if we are really that concerned with intergenerational impositions of implied contractual legal obligations, then we should alter or abolish what we have now and pass on to our own children a set of laws that they would readily welcome and appreciate.

13 Responses to “Intergenerational Impositions”

  1. April 8, 2009 at 10:47 pm #

    A pet peeve of mine that I find in the Constitution Party in general is there seeming love affair with Thomas Jefferson. Don’t get me wrong Jefferson was a brilliant man but for every quote or action there is almost always a contradictory quote or action. He isn’t know as “The American Sphinx” for nothing. I also share this fault of overly quoting Jefferson so I am not trying to simply criticize just educate a little.
    Jefferson was also a big fan of the French Revolution which was enormously bloody and violent. He also believed that there would be a genocidal race war if we didn’t ship all Africans both slave and free out of the country and the craziness goes on. Considering the before mentioned I wouldn’t take Jefferson’s idea of “refreshing the tree of liberty” as something to be welcomed or encouraged. Jefferson also isn’t the great ‘man of the people’ that many consider him today. He was an aristocrat plane and simple. For some interesting reading you should check out his Virginia Statue on Religious Freedoms to see how well he respects the legislative power of future generations.
    I do agree that our apathy and naivety have led us to many of the disasterous policies we have today.

  2. April 9, 2009 at 7:08 am #

    I know it is a little off topic, but it amuses me when people cite the national debt in per-capita terms as if everyone pays their fair share.

  3. JHP
    April 9, 2009 at 9:09 am #

    Very interesting questions, and ones I’ve pondered often. For example, just because I’m born in the U.S. does that mean I should be subject to American law when I never had an opportunity to accept or reject it? I can always move to another state, I guess, but is there any place in the world that doesn’t already have some law governing it? Not that I know of. Therefore, I think we make the best of what we’ve got. We can always try to change it.

    Intergenerational bonds are very important. We might not like everything we’ve inherited in the U.S., but for the most part, our system of government is an accumulation of experience and wisdom of centuries, even millenia, past. I don’t think it would be wise to give that up. And recognizing this teaches us how important it is to pass on the best of everything we have to future generations, including things like our legal structure, our environment, and as little debt as possible.

  4. April 9, 2009 at 9:46 am #

    Chris,

    I’ve got two questions for you:

    1) Did you mean the Libertarian Party instead of the Constitution Party? I’ve looked all over the Constitution Party website and they quote MANY founding fathers including Jefferson. But I don’t see any particular emphasis on him. Libertarians on the other hand use his quotes as part of natural conversation.

    2) What were you talking about when you referred to the Virginia Statute? I read through that entire thing and it didn’t seem to discuss anything in particular about posterity. It certainly held itself as a source of truth like any law. It stated that the freedom of religion is a natural right. I don’t see the connection with that statute and legislative power of future generations.

    About Jefferson. From my studies on the man, I found that he was very libertarian IN HIS EARLIER YEARS. As he both matured and discovered the genius of the Constitution he began changing how he thought about government. A man can change his opinion as he grows and learns. So don’t confuse changing his position over years and discovery with flip-flopping or fence-sitting.

    Earlier, he wanted no part of a powerful central government. He didn’t even attend the Constitutional Convention. But as he saw it work, as he read the Constitution, he realized that maybe this could work to provide the right balance of security AND liberty.

  5. April 9, 2009 at 10:26 am #

    I know it is a little off topic, but it amuses me when people cite the national debt in per-capita terms as if everyone pays their fair share.

    I think it’s effective simply because it’s difficult to quantify the total amount of the national debt in my mind. It’s a number, but once you’re getting into the trillions it loses some meaning and frame of reference. It’s just a really big number!

    Obviously, we’re not all paying our fair share, but the per-capita description helps me wrap my mind around the total a little more easily. It hits a little more close to home.

  6. April 9, 2009 at 11:09 am #

    Connor,

    I had often thought it would be a good idea to have sunsets on EVERY law. I’m not so certain about it. But it still hangs in my mind as a generally good idea. This because I recognize the truth that with every new law, a little bit of liberty is lost.

    We have so many freaking laws in this country, it is virtually impossible not to be a criminal. But many laws are never enforced because people are reasonable. Police are reasonable. Judges are reasonable. Even lawyers are reasonable. MOST of the time.

    I have seen through the news and personal anecdotal evidence that this is becoming less and less so. If a policeman decides to get a stick up their backside, they can and do enforce to the fullest extent of the unreasonable law on otherwise law abiding citizens. And I’m not just picking on policemen. Many people from average citizens to positions of authority are picking and prodding with everything the law can provide — just for personal gain.

    Without sunset provisions, what would you suggest to solve this dilemma?

    You have an argument that if we sunset every law, we will spend an awful lot of time passing the same laws over and over again to make sure people’s rights are being protected. Would that be so bad? One of the main complaints I have about legislators is that they pass some laws just because they feel obligated to do something. So, give them something real to do that won’t perpetually erode liberty.

    If a law is continually renewed generation after generation then someone ought to suggest passing a constitutional amendment (usually state constitutions). Those items will be difficult to pass but if it has been a part of life for generations, it shouldn’t be that difficult. But those things that are controversial (like, say, I don’t know, gay marriage) will have to be re-debated every few years. Until it stops being controversial, it will always have a sunset clause whether it’s for or against.

    At some point society will evolve/devolve to the point where it won’t be controversial anymore. And we won’t need to debate it any further. But until that happens, I don’t want to be stuck with either side winning for an indefinite period.

    Another issue you bring up is the explicit vs. implicit contracts. I’m going to take you on a long road to make my next point, so try to stay awake.

    I wish I had the name, but a professor at the U of Chicago took a poll for decades from his students. He talked about “national books”. Each society is defined by a set of core values that are “written” in some form. Muslims have the Koran. Jews have the torah and other books. Christians have the Bible, etc. England as a nation had the works of Shakespeare. Spain had Cervantes.

    He had two questions,”What is YOUR personal book?” and “What is the American Book?” For decades his students (largely US citizens) for the most part gave two responses: The Bible & the Declaration. Notice that the Constitution was not as popular a response. I believe this was not because people didn’t like it. But that it is a set of rules for government, not the people. The Declaration was a set of principles that we as a nation collectively believed in.

    In the 50s that began to change. It was a noticeable change in just a few years of that decade. Fewer students mentioned the Bible OR the Declaration. Instead, movies & rock music began taking its place. Individuals cited their favorite songs as their basis of judgement and values. They said they were defined by a certain movie. The lack of the Bible being a common response leads to the death of Christianity. The lack of the Declaration leads to the death of liberty and independence. (My opinion).

    Today, if you were to take a poll, I don’t know if people could even answer these two questions. Or if they did, you’d get tremendous variation in the responses. Why would that be a bad thing? Aren’t we supposed to be more tolerant, etc? Yes, we are. It is bad because of the requirement for judgement.

    At what point does tolerance cease to be a virtue?
    What principles do we use to determine what is an implicit contract or contract term?
    Whose judgement is better than another’s?
    What principles do we use to determine who had the greater responsibility in a contract?
    What basis of judgement do we have to determine when a mildly ambiguous part of a contract is being breached and by whom?

    These types of questions cannot be answered unless we have a constant basis for judgement (one national book that all understand). When we no longer have that, we must be governed STRICTLY by laws that we may or may not agree with. And in order to govern well, we must have MANY laws.

    Do we want laws? Yes, you can’t have a prosperous society without them. Do we want excessive laws that don’t allow any room for judgement? No. This makes lawyers that strain at the gnat and swallow the camel. The weightier matters of government are judgement, mercy, & faith. If we don’t allow these elements in government, the law will oppress.

    Consider the difference between our current covenant and the Law of Moses. We have guiding principles which require judgement and often, individual decisions on how to apply those principles in our own lives. They had such rigid standards that you could only take so many steps on the Sabbath. No exceptions, no judgement, no mercy.

    When we ask for a country of laws and nothing else, We get strict oppressive laws to keep everyone in line –Tyranny.
    When we ask for a country of men and not of laws, we get a monarchy.
    When we try to balance the two, we get chaos – unless the nation has a common culture of right and wrong – a national book.

    We currently have none. What does that say for the future of this country? Are we a UNITED states? The only ways for that to be is for the government to FORCE us into one, or for us to unite under a common book, so we unite willingly.

  7. April 9, 2009 at 11:34 am #

    Carbo,

    Every paphlet I’ve ever seen from the Constitution Party is always exclusively full of Jefferson quotes. Their candidates also overemphasize him during debates. Maybe it was just a fad that year? Libertarians are also a little obsessed with him. Maybe someone could humor me and explain the difference between the two parties please.

    My comment about the VA Statue on Religion… was a bit rushed so I don’t know if it made much sense but what I was refering to was the last paragraph seen here:

    And though we well know this Assembly, elected by the people for the ordinary purposes of legislation only, have no powers equal to our own and that therefore to declare this act irrevocable would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

    Interesting the Jefferson recognizes that fact that future legislative bodies could pass a law against his but he states in sly terms that if they did they’d be wrong and infringing on ‘natural rights.’ Not quite what he have come to believe about ‘We the People’ deciding the laws generation by genartion huh? Since he is very proud of this having it among two other things put on his tombstone it just shows how arrogant and bull headed Jefferson could be.
    Jefferson didn’t attend the Constitutional Convention because he was serving as Ambassador to France but he was very interested in the proceedings writing back and forth to his protegee James Madison. I’ve read over a dozen books on Jefferson and the Founding and all these historians admit that Jefferson was a very ambigious character and one that tended to contradict himself constantly. While what you said could be an explanation for it, from my understanding Jefferson was a man of the moment and largely for himself. I have already ranted enough so I won’t go into any specific examples.

  8. April 9, 2009 at 12:01 pm #

    Chris,

    Interesting take on the statute and Jefferson.

    Here is the compare/contrast between the Constitution Party and the Libertarian Party.

    Constitutionalists are largely evangelical Christians. God is spewed forth as a primary platform item. They also claim unity based on such principles.

    Libertarians are largely agnostics or atheists, and quite a few libertines. They claim that individuals should have tremendous sovereignty over their own lives, and often over their families.

    Both parties claim basis in the Constitution, the Declaration, and natural rights of life, liberty, & property.

  9. Clumpy
    April 10, 2009 at 1:28 am #

    Ah, Carborendum, that’s why somebody like Christopher Hitchens confounds me so. A “devout” atheist who’s also a hawk on preemptive war. Your categories conform with general demographic reality in my opinion, but people who break these models are doubly confusing.

  10. April 10, 2009 at 7:34 am #

    Clumpy,

    I understand where you’re coming from. But remember, these are not just my personal definitions of the various ideologies. They are definitions from Wiki. They are merely something we can use as a common reference in order to engage in clear communication.

    Each individual will have some of each of these in them. I don’t know of many people who ONLY exhibit traits from one ideology. There are many who exhibit 90% of the traits of one ideology. But there will always be some issues that one will break with the group. No one can be encapsulated by a simple definition written in a single paragraph.

    Christopher Hitchens is an interesting character. But just because he is an atheist, doesn’t mean you have to agree or disagree with any other atheist on ANY other issue other than the existence of God(s).

    To me, pre-emptive war seems like an issue that an atheist SHOULD believe in. Atheists believe in natural selection (read “survival of the fittest”). Thus they should have no problem with wanting to protect themselves if they feel threatened. But there is a reason most atheists in America feel otherwise.

  11. Clumpy
    April 12, 2009 at 10:55 am #

    I didn’t mean to criticize those definitions, only to express the weird disconnect I feel when somebody doesn’t match one of them (because most people do).

  12. Connor
    April 12, 2009 at 1:46 pm #

    Carb,

    Without sunset provisions, what would you suggest to solve this dilemma?

    I think that sunset provisions are best reserved for events and issues that are only relevant for a certain amount of time. This pertains, of course, mostly to reactionary laws that pertain to specific circumstances, and I know of few instances in which this would be an ideal thing (since enduring and general principles should be the basis of just law, not particular and myopic emphasis, such as the AIG bonus taxation fiasco). Thus, I can’t really think of many good uses for sunset provisions. If we don’t want something to be a law in fifty years, then why are we implementing it now?

    I agree that, in a sense, liberty is lost with each new law passed. Mark Twain summed it up when he said that “No man’s life, liberty, or property is safe while the legislature is in session.” Proper laws would secure liberty instead of reducing it, but we haven’t not been too good at that in this country.

    The danger I see in sunset laws is that they open a wide door for anything to happen. Review the issues with a modern constitutional convention, and you’ll see the worries in great detail. Having a bad law on the books right now (sans sunset provision) is still better than wiping the slate clean in X number of years and then having a very bad law passed. Current bad laws, with no political will to overturn them and replace them with worse laws, is surely preferable to forcing a re-vote on things continuously and opening an easy door for somebody to take political advantage of a crisis to introduce and easily implement a worse set of laws.

    Another issue is with progress. With how may laws we have right now, if all had sunset provisions we would continuously be revisiting old issues and debating the merits of each law. What amount of time, then, would legislators have to deal with more pertinent and pressing issues? And if they instead focused on the more important issues, what happens to the laws that don’t receive attention and fall by the wayside, but are important? In short, and as I said in the post, I think that mandatory sunset laws would create chaos in governance.

    We also complain about legislators not reading laws they pass, but with the amount of work sunset laws would inevitably create, the likelihood of any Congressman reading (much less understanding) each bill would be close to non-existent.

  13. April 16, 2009 at 11:42 am #

    If we don’t want something to be a law in fifty years, then why are we implementing it now?

    Put this on its head, and you’ll see my point. I beleive most laws are bad. So, playing the odds, we shouldn’t be passing them at all. But those in power today want to pass them for whatever twisted logic they have.

    With sunset provisions, they will have to go away eventually. The hope is that if a law survives generation after generation of being re-debated, we will have a basis for making something a permanent law.

    the likelihood of any Congressman reading (much less understanding) each bill would be close to non-existent.

    That’s the way it is now. So, what’s your point? It would be worse? I think not. At most, it would be AS BAD as it is today. But if it is a bad law that no one will read, a sunset provision will make it eventually go away.

    We have many legislative bodies. Federal legislators should only cover those issues that are very broad in scope. They will have enough to keep them busy without robbing us of our money or our liberty. When you get more specific as you go down, there is plenty to do for each legislative body.

    This would take some time to specifically outline what type of laws would be under which jurisdiction. But this is part of what makes good government.

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