THE INVISIBLE HAND FROM THE GRAVE.

Author:Lam, Barry
 
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Imagine what a country would be like if the dead could legally vote. We could pass a law permitting citizens to write a "perpetual vote" into their wills, allowing them to plan a vote for their preferred candidate type, party, or issue, in every election forever, and the government would see to it that these votes would compete with the votes of the living.

We have overwhelmingly good moral reasons to reject such a society. The dead, after all, are exempt from the benefits and harms of current political institutions. They are also perpetually under informed. They cannot learn about the relevant facts that bear on sound political judgment, such as facts about technological, ecological, demographic, moral, and social changes. To give the dead perpetual political power would dilute the power of the living to shape the institutions that they and their descendants must live with. It could subject future generations to political institutions that operate completely contrary to their needs, values, and choices.

The political philosophers most influential to the founding of the United States recognized these moral considerations. Tomas Paine claimed that rule by the dead "is the most ridiculous and insolent of all tyrannies." (1) Tomas Jefferson wrote in 1824, "Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere mater, unendowed with will." (2)

If we agree with these sentiments that deny political power to the dead, do we have similarly good moral reasons to deny economic power to the dead? We certainly do not act like it. Trillions of dollars in the US economy and many legal institutions at all levels are tied up in executing the wishes of the dead in the United States and other common law countries like Britain, Ireland, and Australia. One simple example is the conditional bequest. You may require, as a condition of inheritance, that your grandchildren marry within a religious faith, that your wife smoke at least five cigarettes a day, or that a school be named after you in perpetuity, forbidding a change in name even if the school would otherwise go bankrupt. (3) Conditional bequests have a long and entertaining history, and sometimes the conditions remain in effect many decades beyond the testator's death. (4) The state enforces such conditional bequests on behalf of the dead even when the state has no independent interest in whether the conditions are satisfied, and all affected living parties prefer that the conditions not be upheld.

US law also recognizes a financial instrument called a dynasty trust, which allows individuals to secure wealth in a tax-sheltered trust for their descendants, in perpetuity if they choose. Such wealth can grow tax free, is transferred tax free, and can even be shielded from all future creditors. (5) These dynasty trusts make it possible for heirs of the super-rich to sustain affluent lifestyles that are protected not only from the exhausting need to work, but also from the financial consequences of any poor decisions they might make. At the same time, these individuals do not have full property rights over the wealth in the trust. They could not, for instance, disinherit subsequent generations for any reason, as those rights are constrained by the wishes of the original dead founder of the trust. The irrevocable powers of the original dead founder include the amount distributed to each descendant, who counts as a descendant, what contingencies can lead to disinheritance, and how long the trust is to last. The compounding growth of the assets in such trusts can result in more and more wealth from future generations tied to the wishes of the dead.

A third legal instrument is the charitable trust, where the dead can earmark current and future wealth for some purpose considered "charitable." (6) This term is interpreted generously, and has been taken to include the care of abandoned guinea pigs and the preservation of Huey military aircraft, among other causes. (7) Charitable trusts, like dynasty trusts, can also earn money on behalf of their dead founders. That is, money earned from returns on trust assets such as capital gains or dividends are placed under the power of the wishes of the dead founder, as executed by trustees and courts. Like dynasty trusts, charitable trusts can also exist in perpetuity, so that trust assets are subject to the will of the dead founder forever. Nonprofit institutions like hospitals, museums, and universities can also have large amounts of their endowments constrained by the wishes of long-dead testators. With the wealth and power of a charitable trust, individuals in the past have decreed things like this: that a new park be built for the enjoyment of all and only white people, that a certain wing of a college dormitory be set aside for housing individuals of Confederate ancestry, and that there be an endowed professorship for the study of parapsychology. (8)

Many political institutions contribute to the enforcement of such dead-hand control. County district attorneys and state attorneys general have staff dedicated to enforcing charitable deeds, conditional bequests, and dynasty trusts. But most dead-hand control of wealth is subject to the rulings of courts. Large institutions, like Princeton University, Paul Smith's College, Newcomb College, Girard College, and the Hershey Company, to name a few, have faced major lawsuits over alleged violations of original donor intent. (9) In almost all of these cases, with some exceptions, the job of the court is to determine what practice is most consistent with the wishes of the dead as stated in a particular deed or document, not whether the current state of the world is such that the money is better spent according to, rather than contrary to, the wishes of a dead donor.

It strikes me as odd that we are perfectly happy transferring economic power from the living to the dead via these three instruments--as though the reasons for preventing dead-hand control in politics do not carry over to personal wealth. Even more puzzling is that we prevent dead-hand control in other sectors of the economy. Founders or owners of businesses cannot stipulate legally binding business decisions to be carried out after their death. For instance, a founder cannot posthumously require that manufacturing be conducted in her hometown, or that the company will never do business in Japan. Such founders are perfectly within their rights to make such decisions while they are alive, but there are no legal institutions set up to execute a businessperson's wishes postmortem, and certainly no way for them to execute such wishes in perpetuity. As in the case of political rights, there is no particular mystery as to why. Markets and fashions change, sometimes drastically, and failing to change business practices out of some sense of loyalty or obligation to a past owner can lead very quickly to the death of the business. Requiring the state to enforce a founder's preferences can be tantamount to requiring the state to lead a business to its death.

It is a curious form of greed to feel entitled to eternal ownership of anything, and even more curious that the living permit and even promote it. To say the least, the idea that personal wealth may be tied to the wishes of the dead in perpetuity is in need of justification.

The philosophical literature on this topic is equivocal. Some philosophers believe that individuals can suffer posthumous harm, can be victims of posthumous moral wrongs, and are thereby afforded posthumous rights. (10) These views, if they succeed, can be one way to underwrite the legitimacy of state enforcement of posthumous property rights.

On the other hand we have the considerations of Tomas Paine and Tomas Jefferson that fully generalize to economic power: the world belongs to the living. On this view, death is the final and ultimate alienation of all rights, including rights to personal property. As suggested by the cases of politics and private business, ideas about what it is good to do with power and resources ought to change with the changing conditions of the world. When it is in no living person's best interest for a sliver of the economy to be dedicated to the study of parapsychology, there should be no legal mechanism compelling expenditure on an endowed chair in this field. In general, the fact that a dead person willed that some pot of money be spent in a certain way is never a sufficient justification that the money be spent in that way.

These considerations are far from theoretical. As wealth inequality increases, and as returns on investment far outpace productivity growth, the wealthy are earmarking ever-larger amounts of money from the future economy to carry out their current wishes. (11) The result could be a future economy that reflects the preferences of a past aristocracy rather than the majority of those living. Philosophers, even libertarians, have long worried about the threat that wealth inequality poses to justice when it can be perpetually inherited rather than earned. (12) Inheritance is certainly a concern. But there is a more general concern I have that reaches beyond the mere persistence of wealth inequality through inheritance. The concern is that there is a deep injustice inherent in disenfranchising the living by redistributing control over wealth to the dead, leading to the tyranny of the past opulent over the majority.

Ultimately, I contend that there is no justification for posthumous rights. The extent to which we feel that we owe anything to the dead can be explained completely in terms of the best interests of the living; to the extent that the wishes of the dead depart from the wishes of the living, there is overriding reason to reject any felt need to honor them. I believe that all of the reasons we...

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