Vanderbilt Law Review


Joshua C. Tate

First Page



Legal history, like all history, is inevitably a speculative affair. No one can be sure what the editors of Justinian's Digest might have excised from long-lost works of classical Roman law; nor can one know for certain what went through the minds of certain justices of the U.S. Supreme Court in the mid-twentieth century when they formed and reformed their views on Roosevelt's New Deal. Of course, scholars can try to chip away at this uncertainty: great progress can be made through educated guesses and learned theories. But certainty about the past is reserved for those who lived in it. What is true for history in general is true for the history of state constitutional prohibitions of perpetuities, and in particular for the curious prohibition in the 1776 North Carolina Constitution and Declaration of Rights. The North Carolina prohibition is particularly important because it came first, and its language influenced later state constitutions. As Horowitz and Sitkoff demonstrate in their Article, many good reasons can be offered for the provision. It is nevertheless a curious prohibition, because it is absent from the constitutions of the twelve other original states. Why did this provision emerge only in North Carolina, and not in Virginia, Massachusetts, Pennsylvania, or any of the other "free states" that together rose up against their colonial masters? This Comment will suggest a possible answer to that question.