Thomas Jefferson, Time, and the Supreme Court

By Kaleena Fraga

Addressing a rally in Las Vegas, former first lady Michelle Obama likened young people’s dismal voting records to her daughters letting their grandmother pick out their clothes or their playlists.

“Now, no offense to grandma,” said Obama. “When you don’t vote, that’s exactly what you’re doing. You’re letting other people make some really key decisions about the life you’re going to live.”

Michelle Obama would have an ally in Thomas Jefferson.

Jefferson, in a letter to his friend James Madison, professed his belief that each generation should play a role in determining their own destinies.

“The question,” Jefferson wrote Madison, in 1789, “whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water.”

Jefferson was writing from Paris, less than a month before he would travel back to the newly formed United States to serve as George Washington’s secretary of state.

“I set out on this ground,” Jefferson wrote, “which I suppose to be self evident, that the earth belongs in usufruct to the living.” After a lengthy piece describing how each generation should be free of the last generation’s debt, Jefferson mused:

“On similar grounds it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation…every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.”

Madison, having recently helped create a constitution which he hoped would last much longer than 19 years, refuted much of Jefferson’s claim, arguing that such a design would create anarchy.

Madison also belonged to the camp of Founders who believed  that judges should hold their positions as long as they exhibited “good-behavior,” a point which Jefferson routinely professed disagreement. In a letter written in 1822, Jefferson once mused to a friend, “Let the future appointments of judges be for four or six years and renewable by the President and Senate.” Jefferson oversaw the only attempted impeachment of a Supreme Court Justice, Samuel Chase, a George Washington appointee whom Jefferson believed was overtly partisan.

As Congress grows more partisan itself, unable to pass significant legislation without a fight, the Supreme Court, and its judges, have become more powerful. Certainly, the Court is not what the Founders envisioned–the first ten justices only served for ten years, whereas most justices since 1970 have spent upwards of twenty-five years on the court.

In 2005, 45 leading legal scholars agreed “in principle” to a plan that would limit supreme court justices’ terms to just 18 years. The proposal’s authors, Paul Carrington (a Democrat) and Roger Cramton (a Republican) note that: “the Founders could not foresee that increases in longevity would imperil the rotation in powerful office essential to representative government.” Their plan, a staggered eighteen year term for justices, would allow for an appointment every two years, or two per presidential term, thus resolving the randomness and the overblown significance of Supreme Court appointments.

Thomas Jefferson, in his belief that the Constitution should be reviewed every nineteen years, would have found this an interesting idea. But it’s a complex one, and would be a tough sell to Congress and the American people, especially as life-terms for justices are engrained in American political life.

In the meantime, for people who want to see change on the political stage, there’s only one thing to do: VOTE!