How the dead hand of the past still guides the living

HostIt's a bit strange when you stop to think about it. We live in a world of smart phones and space travel, but we're still ruled by a set of rules written by guys in powdered wigs who used quill pens and didn't know what a light bulb was. Thomas Jefferson actually sat down and did the math on this once. He figured that since a majority of a generation dies off about every nineteen years, every constitution and every law should just naturally end right then. He thought the living shouldn't be ruled by the dead any more than one country should be ruled by another.

GuestIt's a wild idea to think about our laws having an expiration date like a carton of milk. Jefferson was hitting on a deep problem that people who study the law call the dead hand. In the old days, they used a fancy word for it, mortmain, which literally means dead hand. The big question is whether a constitution is a solid foundation we build on or just a cage we're stuck in. Most of the time, we treat it as a way to tie our own hands on purpose. Think about the old story of Ulysses. He knew he was going to sail past the Sirens, and he knew their song was so sweet it would make him lose his mind and steer his ship into the rocks. So, while he was still thinking clearly, he had his crew tie him to the mast and told them not to let him loose no matter how much he begged. A constitution is us tying ourselves to the mast. We write down our deepest values during a time of calm so that when a crisis hits and we start feeling panicky or angry, we can't make a huge mistake that ruins everything.

HostI can see the point of not making a choice while you're panicking, but Ulysses was the one who asked to be tied up. Nobody asked me if I wanted to be tied to a mast that was built over two hundred years ago. If the house is getting old and the roof is leaking, why do we have to keep living in it just because some guy long ago liked the floor plan?

GuestBecause moving out of that house is a total nightmare. This is what people call a coordination problem. In a huge country with millions of people who all want different things, getting everyone to agree on a new set of rules from scratch is almost impossible. Even if the old rules aren't perfect, they give us a starting point. It's a spot where we can all meet because we expect everyone else to show up there too. The cost of leaving is just too high. If we threw out the old rules today, we would've total chaos. There would be fights over every single line, the money markets would freak out, and there would be no safety. We follow the old rules not because those guys in the past were perfect or knew everything, but because having a predictable set of rules is better than having no rules at all. The dead hand keeps its grip because we're afraid of what happens if we let go.

HostThat feels a bit like we're staying in a bad relationship just because we're scared to be alone. I still struggle with the fact that I never signed this deal. I never voted for the constitution. It feels like a stretch to say I agreed to follow it just by being born here.

GuestThat's a fair point, and it's something people have argued about for a long time. There's this idea of silent consent. Basically, the argument is that by using the public roads, or voting in an election, or even just going to court to settle a fight, you're signing the contract with your actions every day. You're choosing to use the tools the system provides. But for that to actually work, the document can't be a frozen object. It has to be able to breathe. This is why the writers used what people call open textured language. They used broad, stretchy phrases like due process or cruel and unusual punishment. They didn't list every single thing that's cruel because they knew that what people thought was okay in the seventeen hundreds wouldn't be okay later. By using those big, open words, they left room for us to pour our own modern meaning into the old vessels. The document stays alive because we keep reading it in new ways that fit our life today.

HostSo we're basically rewriting it in our heads as we go. But if we can just change what the words mean, doesn't that make the whole thing a bit of a myth?

GuestIn a way, it's a myth, but a very powerful one. A long standing constitution starts to act like a civil religion. It gives a nation a sense of who they're and where they came from. It creates a feeling that the country is real and that it lasts longer than any one person or any one fight. When people see the document as something bigger than just a piece of paper, it gains a kind of magic trust. That trust is what keeps the whole thing together. It turns a group of strangers into a people with a shared story.

HostWe keep that nineteenth year in the back of our minds as the moment when the clock should've run out, but we keep winding it back up because we want to stay part of that story.

GuestThe truth is that we choose to let the dead lead us because it's the only way to make sure there's someone at the wheel while we figure out where we're going next.

HostJefferson might have wanted to tear the house down every twenty years, but it turns out we would rather keep fixing the leaks in the one we already have.