Reviving the dead hand: misogyny and politics in the united states in the 21st century

• Author: Prof. Andrew Rudyk
• Pages: 175-200

175

REVIVING THE DEAD HAND: MISOGYNY

AND POLITICS IN THE UNITED STATES IN

THE 21ST CENTURY

PROF. ANDREW RUDYK

UNITED STATES

Introduction

      

economics because of their impact on the Founding Fathers were William Glad-

 

their views about the degree to which the beliefs of past generations should control

future generations. Gladstone, for example, stated that “the instant a man ceases to

be, he ceases to have any dominion: else, if he had a right to dispose of his acquisi-

tions one moment beyond his life, he would also have a right to direct their disposal

for a million of ages after him: which would be highly absurd and inconvenient”.1

Similarly, Adam Smith observed that “The earth and the fulness (sic) of it belongs to

every generation, and the preceeding (sic) one can have no right to bind it up from

posterity.”2 In essence, the Dead Hand, must not control the future.

1 William Blackstone: Commentaries on the Laws of England [1753] in Four Books, Philadelphia, J.B. Lip-

pincott Co., 1893, vol. 1-Books II. 10-11.

2 Adam Smith: Lectures on Jurisprudence, R. L. Meek, D. D. Raphael and P. G. Stein, (eds) Works and Cor-

respondence of Adam Smith vol. V, Glasgow Edition, Indianapolis, Liberty Fund, 1982, 466-468. This

citation is from Smith’s discussion of entails including its prevalence in ecclesiastical property hold-

ing. The lectures took place in 1762 and 1763.

     , whose education made

them acquainted with the Roman customs. As they were the preachers of this doctrine they na-

turaly (sic) became the explainers and executors of wills, till Theodosius Valentinus took it from

them. In England William the Conqueror restored it to the ecclesiastics....

176

PROF. ANDREW RUDYK

Chief Justice John Marshall made a related point in McCulloch v. Maryland,3 when he

discovered “implied powers” in the Constitution in the absence of “enumerated

powers” to charter the Bank of the United States. He stated “Among the enumer-

      

But there is no phrase in the instrument which, like the Articles of Confederation,

excludes incidental or implied powers and which requires that everything g ranted

shall be expressly and minutely described.” He rejected the argument that in order

for a power to be viable it had to be expressly enumerated or that it was essential

for the “Constitution, to contain an accurate detail of all the subdivisions of which

its great powers will admit, and of all the means by which they may be car ried into

execution.” Such a requirement would give the Constitution “the prolixity of a legal

code, and could scarcely be embraced by the human mind.” T he framers intended

only that “its great outlines should be marked, its important objects designated, and

the minor ingredients which compose those objects be deduced from the nature of

the objects themselves. That this idea was entertained by the framers of the Ameri-

can Constitution...” He added, “we must never forget that it is a Constitution we are

expounding.” Later in the decision he stated that the Constitution [is] intended to

endure for ages to come, and consequently to be adapted to the various crises of

human affairs. To have prescribed the means by which Government should, in all fu-

ture time, execute its powers would have been to change entirely the character of the

instrument and give it the properties of a legal code. It would have been an unwise

attempt to provide by immutable rules for exigencies which, if foreseen at all, must

have been seen dimly, and which can be best provided for as they occur.

            

equality and race have been in dispute. Conservative reaction to the 1954 decision

of the Supreme Court of the United States, Brown v. Board of Education,4 has

“Upon the whole nothing can be more absurd than perpetual entails. In them the principals of

testamentary succession can by no means take place. Piety to the dead can only take place when

their memory is fresh in the minds of men. A power to dispose of estates for ever is manifestly

absurd. The earth and the fulness of it belongs to every generation, and the prec eeding one can

have no right to bind it up from posterity. Such extension of property is quite unnatural. The

insensible progress of entails was owing to their not knowing how far the right of the dead might

extend, if they had any at all. The utmost extent of entails should be to those who are alive at the

person’s death, for he can have no affection to those who are unborn.

3 McCulloch v. Maryland, 17 U.S. 316, 1819.

4 Brown v. Board of Education, 347 U.S. 483 (1954), holding in pertinent part that “Segregation of white

and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws

permitting or requiring such segregation, denies to Negro children the equal protection of the laws

guaranteed by the Fourteenth Amendment—even though the physical facilities and other “tangible”

factors of white and Neg ro schools may be equal.”