Journal Articles, etc. relating to the Preamble of the U.S. Constitution

The Federal Government must consider the impacts of Federal actions on posterity; Journal articles and other material:


A reconsideration of the Relevance and Materiality of the Preamble in Constitutional Interpretation. Handler et al., Cardozo Law Review V12:117, 1990

"Although the courts have, on the few occasions on which the question has arisen, have accorded no substantive effect to the preamble, it is difficult to comprehend why they (as well as the commentators) have failed to turn to the preamble as an aid to the proper construction of the constitutional text."

Notes that Jacobson has "chilled" judicial reliance on preamble.

Then discusses preambles of other documents, including legislative acts, and notes the courts have afforded them a larger role than has been acknowledged for the Constitutionís preamble.


The Preamble in Constitutional interpretation Dan Himmelfarb, Constitutional Law Journal,1991, v.2 P.127

In depth look at how the preamble has been used by the SC. Discusses the Courtís references to the preamble- suggests that they decide first, then pick a preamble goal that fits decision, and that since goals are vague and self contradictory this can be done regardless of the decision.

Mentions only Jacobson as a plaintiffs reliance on the Preamble.

Makes no mention of "ourselves and our posterity" but considers "Blessings of liberty" . By listing and examining goals, including "Blessings..." but omitting "ourselves..." Himmelfab suggests my version (a) for preamble syntax.

"Posterity" in the Preamble and a Positivist Pro-Life Position. Raymond B. Marin, Am. J. Jurisprudence, 1993, p273

Suggests that respect for "posterity" as indicated by the preamble might lead to reconsideration of Roe v. Wade. All wet: Roe was decided with a full recognition of society's interest in the fetus (or posterity). Court weighed right of posterity against right of potential mother, decided that rational divide between these interests came with viability of fetus. Thus posterity interest is already respected in Roe, and an acknowledgment of "preamble posterity rights" would have no impact on the logic of Roe. Still, interesting in that he argues for constitutional protection of posterity.

Protecting Posterity, Aviam Soifer, Nova Law J., 1982 7p39

Is the arms race unconstitutional, as an offense to posterity? Good cites to Madison and Jefferson. Soifer is now Dean at Boston Collage Law School

The Interests of Posterity in the Constitutional Scheme, R. George Wright, Cincinnati Law R. V59:113

Dynamite first paragraph: "Historically, societies attracted to unproductive ways of enhancing or maintaining their usual levels of consumption have faced substantial resistance from their victims. Recently, however, we have begun to appreciate the advantages of despoiling our neighbors in time, rather than in space. On of the critical advantages is the limited political resistance that tends to arise from young or future persons."

Discusses issue in terms of equal protection rather than preamble/posterity. Fits well with preamble argument- per Jacobson v. Mass, we need to use preamble only for vision, per ex parte Yarbough we can argue that preamble limits or expands explicit substantive power. But can talk about substantive power of the equal protection clause as something that the preamble must guide and expand.

Virginia Declaration of Rights:

"1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

This language is retained in Art. 1 of the Virginia bill of rights.
see: 10 Sources and Documents of the United States Constitution 49 (W. Swindler ed. 1979)

T. Jefferson:

"...the earth belongs in usufruct to the living.." letter to Madison 6 Sept 1789

see: A. Koch, Jefferson and Madison 62-96 (1950)

A a few authors bridge the gap between environmental law and Philosophy.
They include:

Bruce Auerbach, Unto the Thousandth Generation: Conceptualizing Intergenerational Justice (Peter Lang, New York, 1995). JC 578.A94(Albright College);

Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. (New York University Press, New York and London 1995).

Feinberg, Joel. Rights, Justice, and the Bounds of Liberty, (Princeton: Princeton University Press, 1980).

Blumm, Michael C. "The End of Environment Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit." Environmental Law 25 (no. 1,1995):171- .

Caldwell, "Land and the Law: Problems in legal Philosophy," 1986 U.Ill. L. Rev. 319, 320. (Stewardship ethic).

Myrl Duncan, "Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intelletual and Legal History in Takings Analysis," 26 Environmental Law 1095 Winter ‘96. 1095-1160.

Sax, Joseph L. The Search for Environmental Rights , 6.1 of Land Use and Envtl. Law 93, 103 (1990) ­ Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L. Rev.1433 (1993).

LAW, MORALITY AND SOCIETY. Ed. by P. Hacker and J. Rauz (1977) (esp. Barry, "Justice Between Generations").

Mark Sagoff, The Economy of the Earth: Philosophy, Law and the Environment, Cambridge Univ. Press. 1988

Christopher D. Stone, Earth and Other Ethics: The Case for Moral Pluralism. NY. Harper and Row, 1987 ­, Should Trees Have Standing? And other essays on law, morals and the environment. (Oeana Publications, Dobbs Ferry, NY 1996)

Weiss, Edith Brown. In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity. (Dobbs Ferry, NY: Transnational, 1989).

Bobertz, Bradley C. Note, "Toward a Better Understanding of Intergenerational Justice," 36 Buff. L. Rev. 165, 170-71 (1987)(discussion of Jefferson, Madison, and Paine).

Caldwell, "Land and the Law: Problems in legal Philosophy," 1986 U.Ill. L. Rev. 319, 320. (Stewardship ethic).

Damato (D'Amato), Anthony. "Do We Owe a Duty to Future Generations to Preserve the Global Environment?" American Journal of International Law, 1990. 84:195-198. (v8,#3)

Epstein, "Justice Across Generations, 67 Tex L. Rev. 1465, 1465 (1989) (epstein wants limited gov't).

Farber, D. A., and P. A. Hemmersbaugh, "The Shadow of the Future: Discount Rates, Later Generations, and the Environment. 46 Vanderbilt L. Rev. 267-304 (1993).

Schlickeisen, Rodger. "Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment." Tulane Environmental Law Journal 8 (1994): 181-212. A proposed U.S. constitutional amendment: "The living natural resources in the United States are the common property of all the people, including generations yet to come. All persons and their progeny have an inalienable, enforceable right to the benefits of those resources for themselves and their posterity. The United States and every State shall assure that use of those resources is sustainable and that they are conserved and maintained for the benefit of all the people." Schlickeisen is president of the Defenders of Wildlife. (v6,#1)

R. George Wright, "The Interests of Posterity in the Constitutional Scheme," 59 U. Cincinatti L. Rev. 113-146 (1990).

Environmental Law Resources:

Environmental Law is published quarterly by the students of Northwestern School of Law of Lewis & Clark College
Environmental Law overview from Cornell
The Center for International Environmental Law, public interest, non-profit environmental law firm
Environmental Law Alliance Worldwide
Southern Environmental Law Center

 

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