The Universal Notebook: Dictates of the dead

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High on the list of subjects about which I am greatly ambivalent, conflicted and inconsistent is the time-honored tradition of allowing the dead to dictate to us what we, the living, can and cannot do.

Not to do so, I suppose, would be to abrogate a system of laws, yet I very often find myself thinking, “Who cares what some dead person wanted?”

This subjugating of the present to the past is particularly obvious in the area of conservation easements. While I am certainly all in favor of protecting the environment and preserving natural resources, I have trouble with the idea that an individual should be allowed to tell posterity in perpetuity what it can and cannot do on a piece of land they once owned.

So I have been following the kerfuffle over Cumberland’s first public beach with interest.

Cumberland voters approved a $3 million bond to purchase 25 acres of woodland and waterfront from a developer in November. The developer had purchased the property from the heirs of Marion Brown Payson. The Payson heirs object to the proposed public beach and have brought suit, charging that a conservation easement Payson granted to the Chebeague and Cumberland Land Trust in 1997 prohibits anything other than walking trails.

Apparently, it should also have prohibited the Payson heirs from cashing in Ms. Payson’s chips.

I have no idea what a court might find, but philosophically I believe there is a big difference between the wishes of a private citizen and those of a public body. The idea that a piece of land can never be developed because someone who used to own it said so is simply preposterous.

Land trusts are a good thing, but times change and with them the interests, needs and desires of a community. If the town of Cumberland feels public access is what the town needs, why should the late Marion Brown Payson get to tell the town what to do?

Of course, that view puts me in an uncomfortable position vis-a-vis such a wonderful natural asset as Baxter State Park. Percival Baxter assembled the land for the park and stated in a 1931 trust that it “shall forever be used for public park and recreational purposes, shall forever be left in the natural wild state, shall forever be kept as a sanctuary for wild beasts and birds …”

I love Baxter State Park, but I have trouble with the idea that we should all be slaves to Baxter’s intent, which has already been challenged and stretched by snowmobiling, hunting, logging and chemical spraying. Who knows what else future generations might want or need to do there?

I guess the major difference between the Baxter and Payson situations is that Baxter Park is controlled by a public entity, the Baxter State Park Authority. Their charge is essentially to do Percival Baxter’s bidding. But, honestly, why should Baxter get to call the shots from the grave?

I am all for the rule of law, as long as those laws derive from the consent of the governed, not the dictates of the dead. Constitutional originalists believe that the intent of the Founding Fathers was fixed at the time of enactment. But the U.S. Constitution, like the Holy Bible, is a living document. The situations and circumstances to which its strictures must be applied were unknown to the founders. As such, the Constitution must constantly be interpreted and amended.

It is all quite charming and naive for originalists, strict constructionists and constitutionalists to insist that we must adhere to the meaning of the Constitution as it was understood by its powdered-wigged framers in the 18th century, but those men themselves often had different interpretations of the Constitution. And which of James Madison’s own views on the Constitution – the strong central government he advocated when he wrote it, the strong state’s rights position he subsequently embraced, or the compromise he reached in old age – is the original intent?

Personally, I don’t care what the Founding Fathers intended. There is no way to know centuries later and why would we want to honor the wishes of wealthy white landowners who really only extended the blessings of life, liberty and pursuit of happiness to themselves? Not to women? Not to minorities? Not to immigrants? Not to children?

As my favorite poet Dylan Thomas once observed (though he was talking about the interpretation of poems not laws), “the function of posterity is to look after itself.” We, the living, should not be shackled by the demands of the dead. When you’re dead, you’re history. Have the common courtesy to get out of the way and let us get on with the business of living.

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Freelance journalist Edgar Allen Beem lives in Brunswick. The Universal Notebook is his personal, weekly look at the world around him.

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