文档介绍：CHICAGO
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 09
Common Law, Common Ground,
and Jefferson’s Principle
David A. Strauss
THE LAW SCHOOL
THE UNIVERSITY OF CHICAGO
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Common Law, Common Ground, and Jefferson’s Principle
David A. Strauss*
“The earth belongs to the living”
“The earth belongs in usufruct to the living,” Thomas Jefferson
famously wrote from Paris in 1789, in a letter to James Madison. “The
question [w]hether one generation of men has a right to bind another,
seems never to have been started [sic] either on this or our side of the
water,” even though “it is a question of such consequences as . . . [to] place .
. . among the fundamental principles of any government.” Jefferson’s
answer to the question, of course, was no. “We seem not to have perceived
that, by the law of nature, one generation is to another as one independent
nation is to another.”1
Therefore, Jefferson said, “[e]very constitution . . . and every law,”
should “naturally expire[] at the end of 19 years.”(Jefferson elaborately
calculated, on the basis of life expectancies at the time, that a majority of
people 21 and older would die within 19 years, and concluded that that was

* Harry N. Wyatt Professor of Law, the University of Chicago. This paper is adapted
from a chapter in a book in progress mon law constitutional interpretation. I am
grateful to participants in workshops at the University of Michigan, University of
Pennsylvania, University of Chicago, and Yale Law Schools for ments on
various versions of this paper.
1Letter of Sept. 6, 1789, to James Madison, reprinted in xxx.
the best measure of a generation’s life ) If any law “be enforced
longer, it is an act of force, and not of right.”3
Jefferson’s argument, in some form