Look around the room you’re in. Most of what makes it usable, you didn’t build. The power grid outside, the pipes your water travels in, the road you came in on, even the legal rules that make the title to the place mean something. You inherited all of it from people you never met, who aren’t available for thanks or for argument. One day you’ll hand it to somebody who isn’t born yet.
So what exactly are you permitted to do with a thing you didn’t make and won’t keep?
There are many answers available, but I want to focus on three people slide between them without noticing. You can say you own it, in which case you may do as you like, including consume it until it’s gone. You can say you’re a tenant, in which case somebody else’s rules bind you your entire life. Or you can say you hold it in trust, which sounds noble right up until somebody asks what the duties actually are.
My position and this article is that the third answer is right, and we’re going to do what most of these analyses don’t - specify. The duties required of you exist, they’re written down, they’re enforceable, and they’ve been all three for about seven hundred years. The whole apparatus sits in our inherited law of property, under a word most people have never heard used seriously.
The word is waste.
The title of our article comes from one of the best sentences anybody has written about the job, which turns up in an unlikely place. In 1974, an economist named James Tobin, writing about how a college endowment should decide what to spend, put it this way: the trustees of an endowed institution are the guardians of the future against the claims of the present. Hold on to the word claims. I’ll come back to it.
And here’s where this comes out, which is not where the slogans come out. The law is considerably more permissive about tearing things down than the stewardship literature is, and considerably harsher about letting them rot. The great sin of a life tenant is almost never demolition. It’s neglect. Doing nothing isn’t a neutral act, and it’s also the offense that gets you sued.
Temporary possessors and life-renters
In 1790 Edmund Burke published Reflections on the Revolution in France, and buried in it is this same idea in English.
The famous sentence is the one about society being a partnership between those who are living, those who are dead, and those who are to be born. It turns up on conference programs carrying a warm communitarian flavor, generally with nothing around it to provide context.
In the actual text, four passages sit in a row in this purposeful order. First, power is held in trust. Second, the holders are therefore life-renters and not owners. Third, which follows from the second, they may not cut off the entail (end a legal restriction that forces an estate or land to stay within a specific family line, in our context: Americans) or commit waste. Fourth, the reason all of that holds is that the thing they’re holding runs across generations. The partnership sentence is the justification clause at the end of an argument about tenure.
The first move is that all persons possessing any portion of power ought to be impressed with an idea that they act in trust, and must account for their conduct in that trust. In short, it’s not about you. And then comes the passage in which every clause does work:
“But one of the first and most leading principles on which the commonwealth and the laws are consecrated, is lest the temporary possessors and life-renters in it, unmindful of what they have received from their ancestors, or of what is due to their posterity, should act as if they were the entire masters; that they should not think it amongst their rights to cut off the entail, or commit waste on the inheritance, by destroying at their pleasure the whole original fabric of their society; hazarding to leave to those who come after them, a ruin instead of an habitation.”
Hold on to two phrases in the middle of that. Cut off the entail (end a legal restriction that forces an estate or land to stay within a specific family line). Commit waste on the inheritance. Those are not figures of speech. Barring an entail and committing waste are two separate technical institutions of English land law, with procedures and remedies and case reports attached, and Burke has stacked them back to back in a single sentence. He isn’t reaching for a metaphor. He’s citing the law.
The passage continues past where people stop it, into the actual punchline:
“By this unprincipled facility of changing the state as often, and as much, and in as many ways as there are floating fancies or fashions, the whole chain and continuity of the commonwealth would be broken. No one generation could link with the other. Men would become little better than the flies of summer.”
So by the time you arrive at the famous sentence you’re at the end of a chain of reasoning, and the argument is specific. The target word here is dissolve. Burke is attacking a doctrine that Richard Price and the Revolution Society were preaching in London, that a people may re-found its government whenever it judges an improvement available, and his comparison to a partnership in a trade of pepper and coffee is a contrast with dissolubility. He converts the two sentences after the partnership line into a prohibition: the communities inside that larger order are not morally at liberty at their pleasure, and on their speculations of a contingent improvement, to tear asunder the bands of their subordinate community. Speculations of a contingent improvement is a swipe at reform conducted on theory.
The rights of the living
A year later Thomas Paine answered him, and the answer is as good as you’d expect from Paine. Three of the most quoted sentences in English about generations sit consecutively in one paragraph of Rights of Man:
“Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it.”
“The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.”
Then the sentence everybody quotes, usually cut in half:
“I am contending for the rights of the living, and against their being willed away and controlled and contracted for by the manuscript assumed authority of the dead, and Mr. Burke is contending for the authority of the dead over the rights and freedom of the living.”
The question here is simple: who does the constitution belong to?
Paine isn’t alone. In September of 1789 Jefferson sat down in Paris and wrote Madison a letter making the same case with arithmetic, opening with a question he says nobody has thought to ask, whether one generation of men has a right to bind another, and stating his premise in quotation marks as a maxim he’s adopting: “that the earth belongs in usufruct to the living.” Then he goes and gets a mortality table, works out how long it takes for half the adult majority in a stationary population to die, arrives at nineteen years, and declares that the term beyond which no nation can validly extend a debt. Notice the logic isn’t biological. He isn’t asking how long people live; he’s asking how long it takes for the majority that consented to stop being the majority. A generation, for Jefferson, is a voting bloc with a half-life. And he runs it straight through from debts to law: every constitution, and every law, naturally expires at the end of nineteen years.
Here’s a small correction. You’ve heard the phrase the earth belongs to the living, attributed to Jefferson in exactly those words. He didn’t write them. He wrote that the earth belongs in usufruct (is a legal right that allows one person to use and profit from property owned by someone else, without owning it) to the living, and later in the same letter that the earth belongs always to the living generation. The clean short form is Madison’s, from his reply of February 1790 summarizing the doctrine. The slogan was manufactured in the act of answering the letter, then circled back and got attributed to the man being answered. Just a quick etymology.
The reply does something smarter than refute. Madison concedes the principle as theory and then shows it can’t be operated, and his first objection is the one this whole essay runs on:
“The improvements made by the dead form a charge against the living who take the benefit of them.”
It isn’t an argument from ancestry, and it isn’t an argument from consent. It’s an argument from use, practical application, not theory. You didn’t agree to the roads or the charters or the cleared land or the won independence. You’re using them. Use is a charge. That claim doesn’t need Burke’s hereditary peerage and doesn’t need anyone to have consented to anything, and it’s in Madison’s hand in February of 1790.
To be clear, Burke and Paine are not arguing about the same thing. Burke’s claim is about tenure: you hold this as a life-renter, and a life-renter may not commit waste. Paine’s reply is about consent: the dead cannot vote (except for Democrats), so their acts cannot bind. Those are different objections. Where a past assembly purported to legislate perpetual obedience, Paine is devastating, and he says so in exactly those terms, that Burke has set up a sort of political Adam in whom all posterity are bound for ever. Fair enough. But it doesn’t touch the claim that you’ve inherited a usable thing and would be destroying it before the next beneficiaries receive it. Nothing in Paine says you may burn the house down.
Jefferson, meanwhile, hands the whole thing back without noticing. Usufruct is a term of art from civil law, and the obligation lives inside the word: the holder gets the use and the fruits and is bound to preserve the substance of the thing. And look at his own reductio against perpetual debt, that otherwise a man might during his own life “eat up the usufruct of the lands for several generations to come.” That is Burke’s doctrine of waste, in substance, in the mouth of Burke’s opponent.
So the real disagreement is quite a bit narrower than it looks. Both men hold that the present generation may not consume the inheritance. They differ on whether the past generation may issue binding instructions as to how it’s maintained. Nobody here defends an owner’s prerogative to liquidate, and anyone citing Jefferson for a right to spend the inheritance is citing the wrong half of him.
What a life tenant actually owes
Let’s start this conversation with two people and one thing. One of them has it now, the other gets it later. The law calls them the life tenant and the remainderman, and the structural point, in Thomas Merrill’s formulation, is that waste applies wherever two or more people have interests in property and at least one of them is not in possession of it.
Waste is the law’s word for what the one in possession may not do, defined by the Wisconsin Supreme Court as any act or omission of duty by a tenant of land which does a lasting injury to the freehold. American courts sort it into three kinds.
Voluntary waste is misfeasance: you did something, and it wrecked the thing, like the tenant in Merrill’s example who cuts and sells the cherry trees off a leased farm.
Permissive waste is the one that should be on the poster. It’s nonfeasance: failure to maintain, physically or financially. No bad act is required. You simply didn’t do the ordinary repairs, or didn’t pay the taxes, and the thing degraded on your watch. This is the sin of modern America.
There’s a Kansas case from 1981 called Moore v. Phillips where a woman named Ada Brennan held a life estate in a farm with a farmhouse on it. She didn’t live in the house and didn’t keep it in reasonable repair. After she died the remaindermen sued her estate for the deterioration and won, under a standard asking whether she had used the ordinary care of a prudent man for the preservation and protection of the estate. The remedy was damages, assessed for doing nothing.
Now the demolition cases, which is where ameliorative waste lives and where the law is more generous.
In 1929 in Manhattan, George Brokaw held a life estate in a mansion his father had built at Seventy-ninth and Fifth, remainder to his children. The neighborhood had gone to apartment buildings, the house was costing him money, and he proposed to replace it with an apartment house that by his estimate would improve the return by thirty thousand dollars (roughly half a million now) a year, to his children’s benefit as much as his own. The court said no: the will called the property his father’s residence, the son held a plain unconditional life estate, and destroying the residence would injure the inheritance. He lost, lost on appeal, and lost again after that.
Thirty years earlier in Milwaukee, the opposite happened. Charles Melms left a life estate in a mansion that ended up with the Pabst Brewing Company. The neighborhood around the old brewery works had gone industrial, and the house was useless as a house, stranded on grade above a regraded street. Pabst tore it down, the remaindermen sued for Wisconsin’s double damages, and Pabst won. The court held that a radical and permanent change of surrounding conditions must always be an important, and sometimes a controlling, consideration in deciding whether a physical change is waste.
Put those two together and you get something more useful than either slogan. The law does not forbid tearing things down. It forbids unjustified tearing down, and it puts the burden on the person in possession to make the showing. And the showing is specific, because the Melms court expressly said its case was not to be read as justifying a tenant in making substantial changes generally. The showing is that the world around the asset moved, not that you found a better use for the land. Brokaw could have made more money, demonstrably, for his own children. He lost anyway.
Burke’s other phrase has a chronology. An entail was land locked into a family line so that each generation could use it and nobody in the chain could sell it out of the bloodline, and cutting one off meant a staged lawsuit with a fictitious plaintiff and a hired loser who defaulted on purpose, producing a final judgment that barred the heirs downstream forever. This is a sharper accusation than it sounds: a collusive technical maneuver by the person in possession, against everyone downstream, through abuse of legal form instead of open argument. Virginia abolished the fee tail in the October 1776 session of the General Assembly, on a bill drafted and carried by Thomas Jefferson, who wrote in his autobiography that the repeal was no deprivation of natural right but an enlargement of it.
So Burke, in 1790, chose as his figure for the inviolability of a constitution a legal device the author of the Declaration of Independence had destroyed in his own state fourteen years earlier. And one more thing about that statute: its title is an act declaring tenants of lands or slaves in taille to hold the same in fee simple. By 1776 the entail was locking up human beings along with acres, which strengthens the case against locking the present out of its inheritance instead of weakening it.
A duty to somebody who isn’t born
Property law gives you the physical version of this theory. Trust law gives you the financial version, and it’s more explicit than anything in the political literature. I say that because this is all legalese and history, but in the following articles and podcast episodes, we’re going to discuss how these theories apply to how we treat our civilization and culture, not just our property.
The Uniform Trust Code, enacted in most states, contains a section numbered 803:
“If a trust has 2 or more beneficiaries, the trustee shall act impartially in investing, managing and distributing the trust property, giving due regard to the beneficiaries’ respective interests.”
That sounds like a rule about two living siblings, and occasionally it is. But in the standard trust the conflict it governs is between the income beneficiary, who gets payments now, and the remainder beneficiary, who takes what’s left and frequently does not exist yet. One wants cash today, which argues for bonds and spending. The other wants real growth, which argues for equities and restraint. They’re in genuine conflict across time, and the trustee is forbidden by statute from resolving it by preference for himself alone. When he finds he cannot comply with that duty, a separate statute gives him a power to move money between principal and income to fix it. Impartiality across time isn’t aspirational language in a preamble. It’s the condition precedent in the machinery.
The duty runs to the beneficiaries the settlor designated, not to posterity at large. The accurate version is better anyway: American trust law imposes an enforceable duty of fairness toward beneficiaries who do not yet exist, and it appoints somebody to speak for them in court. That second clause is the one to keep. The law didn’t just invent the obligation; it invented a representative for the party who can’t show up. Somebody has to be in the room for the unborn, and the court will manufacture that person if it has to.
There’s an institutional version too. The Uniform Prudent Management of Institutional Funds Act, law in forty-nine states, tells charities and colleges and museums that the first factor to weigh before spending from an endowment is the duration and preservation of the fund, ahead of the institution’s own purposes, and the act’s own prefatory note says the approach lets a charity assure generational equity. Nobody fought about that phrase, because it’s boring when lawyers say it. The intellectual source is an economist, and he said it better. The aforementioned James Tobin, in 1974:
“The trustees of an endowed institution are the guardians of the future against the claims of the present.”
“Their task is to preserve equity among generations.”
Tobin’s rule underneath that is a sustainability constraint you can run on almost anything: spend at a rate the existing endowment can sustain indefinitely, so the institution can go on doing the same set of things it’s doing now, and raise new money if you want to do more. Financing expansion by consuming what you were given is a transfer from the future to the present wearing the costume of growth.
Philosophers have spent forty years on an objection to obligations of this kind, Derek Parfit’s non-identity problem. Notice that the law never had that problem, not because it solved it but because it never framed the duty as owed to a person. It framed the duty as owed on a thing, in our case, Western and American civilization and culture.
The inventory
So do what a trustee does on taking over. Take inventory, and record both columns.
We were handed the interstate highway system: 42,795 miles built under the construction program at a total cost of $128.9 billion, of which $114.3 billion was federal, the first project breaking ground in Missouri in August 1956. Asked when the program ended, the Federal Highway Administration’s published answer is two words. It didn’t.
We were handed the end of polio. More than 21,000 paralytic cases in the United States in 1952, and the last case of wild poliovirus acquired here was in 1979. Almost nobody alive today paid any part of that price, and almost nobody thinks about it for ten seconds a year.
And we were handed the land-grant colleges, under the Morrill Act of 1862, which grew to an allocation of over 100 million acres. The National Archives, telling the story in its own words, notes that over 10 million of those acres came from tribal lands. So that entry is partly a gift and partly a transfer, and if you’re putting it in the inherited column, put the whole entry in.
Now the other column. Federal debt held by the public, at the end of the second quarter of this year, about $31.7 trillion (plus another 9 trillion owed elsewhere). The Congressional Budget Office puts that at 101 percent of GDP this year, 120 percent by 2036, and 175 percent by 2056, and raising the interest-rate assumption a single percentage point takes the 2056 figure to 222 percent. For scale, the previous historical high was 106 percent, in 1946, right after we won a world war.
On Social Security, the 2026 trustees report projects the retirement trust fund depleted in the fourth quarter of 2032, with 78 percent of scheduled benefits payable afterward. The headline number you’ve heard is 2034, which is the legally theoretical combined fund; the actual 22 percent cut lands on the retirement books in 2032. Medicare’s hospital insurance fund goes in the second quarter of 2033, at 89 percent.
And then infrastructure, which belongs in this essay more than any other entry. Last I checked, something like 65% of the bridges in America were in some state of disrepair. The American Society of Civil Engineers gave American infrastructure a C in its last report card and put the investment gap at $3.7 trillion over 2024 to 2033, against a total need of $9.1 trillion to reach a state of good repair.
A state of good repair. Every dollar in that figure is a maintenance number. It isn’t the cost of building new things. It’s the unpaid repair bill on property we were handed. Schools graded D+, wastewater D+, drinking water C-. The National Park Service carries $24.2 billion of deferred maintenance, $3.4 billion of it in the National Capital Region, which is the Mall and the memorials, the things the country films itself standing in front of.
That is permissive waste. Not a decision anybody made, not a thing anybody tore down. It’s just a roof that rotted while everyone argued about something else.
So here’s the test. Answer these four questions, and they’re a life tenant’s questions, not a philosopher’s.
The first is whether you’re looking at voluntary or permissive waste. Are you being asked whether to tear something down, or are you letting something rot while you argue about something else? The dramatic question gets the attention, but the other one does the damage. Voluntary waste requires a decision. Permissive waste requires nothing at all but neglect, which is why it’s the common kind, and why it never feels like a choice while you’re making it.
The second is the Melms question. If you’re going to change the thing, can you show the conditions around it moved? Not that you could do better. Brokaw could have done better, in dollars, for his own children, and he lost. The showing is that the world changed such that the thing can no longer do the job it was given to you to do. If what changed is only your preferences, you don’t have the same argument.
The third is Tobin’s. Are you spending the income or the corpus? Run it his way: can this institution still do tomorrow everything it does today, out of what it has? If the answer is only with more money from somewhere, you’re spending the corpus and calling it growth.
And the fourth is the one almost nobody can answer. Who speaks for the remainderman (who doesn’t exist yet), and have you appointed anybody? Trust law doesn’t leave the future unrepresented; it manufactures a party. So in your church, your company, your town council, your family: whose job is it to make the argument for the people who aren’t in the room? If the answer is nobody, you already know how the vote goes, every time, forever.
Both failure modes are real. The first is Brokaw, a man forbidden to replace a house that had stopped being a house because somebody a generation back called it a residence in a will. That’s what treating every inherited thing as entailed forever produces, and it isn’t stewardship, it’s just taxidermy. The law itself backed away from that doctrine, and commentators now say ameliorative waste is for the most part dead.
The second is Jefferson’s own nightmare in his own words, a man who during his own life eats up the usufruct of the lands for several generations to come. Which is less dramatic in practice than it sounds. Nobody announces that he’s consuming the capital. He defers the repair, books the savings, and calls the year a success.
The assignment
Here are two things to do with this.
The first is an inventory, written down. Pick one thing you hold that somebody else gets after you: a business, a house, a committee seat, a piece of land, a congregation. Two columns. What was it like when it came to you, and what is it like now. Then run the second question. Not what you’ve torn down. What you’ve let slide, the repair deferred three years running because it isn’t urgent and nobody’s complaining and there’s always next year. That entry is the one that’ll be in the record.
The second is harder. Go find the remainderman and appoint him. In whatever you’re part of that outlasts you, name an actual person whose job in the room is to argue for the people who aren’t there. This is a big part of mentorship. Find someone who is going to inherit something real from you, whether it’s your kids or someone else inheriting your old job, your contribution to a group, etc. Trust law worked out seven centuries ago that a duty with nobody to assert it is a duty that doesn’t get asserted. Every institution you belong to has somebody in the room for this quarter and nobody in the room for 2050. This is about accountability and results.
Which brings me back to claims. Tobin wrote that sentence about the trustees of a college endowment, about as unromantic a subject as exists, and he meant it technically. He was describing a spending rule. But look at what it concedes. The present has claims. Real ones, made by real people who are sick now and underpaid now and short of money now, and they are not wrong to ask. Nobody in that sentence is a villain.
Which is why the job is guarding and not refusing. A guardian doesn’t pretend the other side has no case. He makes sure somebody is standing where the future would stand, saying what the future would say, before the vote is taken.
Burke, two centuries earlier, told you what it costs when nobody does that. He wasn’t describing villains either. He was describing temporary possessors who were unmindful, who weren’t paying attention, who acted as if they were the entire masters because nobody ever told them they weren’t. And what he says they leave behind isn’t a crime scene.
“a ruin instead of an habitation”
We have to stop looking for villains and start attacking our own incompetence and neglect, or the enemies around us will step over our weakened infrastructure to seize power without a fight at all.