Thomas Jefferson had a novel idea about government

February 21, 2010

Occasionally, even an old journalism major comes across a new word. It’s “usufruct,” a legal term dating back to the Romans that jumped out from one of Thomas Jefferson’s letters to his neighbor and political confidant, James Madison.

Pronounced “YOU-ze-frekt,” usufruct is defined by Webster’s as “the legal right of using and enjoying the fruits or profits of something belonging to another.” Merging Latin “usus et fructus,” for “the use and fruits (or enjoyment),” usufruct was the cornerstone of a key aspect of Jefferson’s political philosophy.

Jefferson, you recall, wrote the Declaration of Independence while Madison still had acne. Likewise, Madison wrote most of the U.S. Constitution while Jefferson was serving as ambassador in France. They both lived in the Charlottesville, Va., heartland.

Madison was concerned with the structure of the new government, a concept he called “federalism,” in which a stronger national government shared power and responsibility with existing state governments. Jefferson was more interested in individual human rights, upon which governments could not interfere.

They visited in person when they could, discussing politics and world history in the abstract. For two years, while Jefferson was in France (under the old Articles of Confederation) and then after he became the first Secretary of State in George Washington’s cabinet, the third and fourth future U.S. presidents corresponded often about what should be in the Bill of Rights.

As men we now call “the Founders,” they knew that no government had ever existed like the new structure the new Constitution created. Between them, they reached one of the most fascinating informal compromises in the nation’s history.

Madison wrote many of “The Federalist Papers,” political essays printed and reprinted in major newspapers in 1787-1788, in which he urged the country to approve the U.S. Constitution, which promised to “secure the blessings of liberty to ourselves and to our posterity….”

Jefferson pointed out that, what the government could and could not do was well described, but the liberties of the people weren’t so clear. Then he played hardball with Madison, telling him if he wanted Jefferson’s support in Virginia—the most populous, most prosperous of the states—he would have to add amendments, to be known as a Bill of Rights.

Madison agreed.

By September 1788, enough states had approved the Constitution and, as a member of the 1st Congress, Madison began working on the first set of amendments. In his September 6, 1789, letter, Jefferson wrapped up his two-year correspondence by explaining his view that “usufruct” applied to government as well as ordinary property.

“The question whether one generation of men has a right to bind another” places it “among the fundamental principles of every government,” Jefferson wrote. Like the rights “to life, liberty and the pursuit of happiness” from the Declaration, he firmly believed it “self-evident that the earth belongs in usufruct to the living….”

A legal concept unchanged for centuries, usufruct referred to the right to use “without injuring…the thing itself,” Jefferson said. Generations of unborn Americans, he explained, had a sovereign right to inherit a country with the same rights and privileges he had said in the Declaration were “endowed by their Creator” to their ancestors.

Jefferson applied usufruct to “civil liberties,” but he noted that society, as trustee of the earth, reasonably expects the natural estate to be returned undiminished and unencumbered to each succeeding generation. “Society” would have included every Congress, every President and every U.S. Supreme Court from the beginning.

How would Madison and Jefferson have felt about the most recent generation of U.S. governments passing on some $14 TRILLION of debt to future generations? While they may not be spinning in their graves, I think they’ve turned over and are digging furiously through the Virginia clay to get as far away from Washington as they can.