Preamble: relevance to Environmental Law

Does the United States Constitution Provide Environmental Protection?

—The obligations of the Federal government —page 3

It seems reasonable to conclude that, if this construction of the Preamble is the proper one, the "blessings" must include the basic infrastructure of life and society: i.e. land, air, water, food, and the freedom to obtain and use these things. This conclusion is supported by at least three arguments:

First, the "blessings" must be either a redundancy, which brings us back to the second case, and applies "ourselves and our Posterity" to the entire list of goals, or be different from the other goals. If different from the other goals, what is left? Only infrastructural necessities.

Second, there is a history of "posterity" oriented language that was well known to the framers. The Virginia Declaration of Rights says:

"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."

Had the framers intended to suggest something other than the sense conveyed by the Virginia Declaration they would certainly not have used such similar language without making an effort to clarify the difference between what they were trying to say and the well known precedential language of the Virginia Declaration.

Third: It is clear that at least Jefferson and Madison had a keen sense of society’s obligations to posterity. This concern is reflected in a number of written records, for instance Jefferson wrote, in a letter to Madison on 6 Sept 1789 that: "...the earth belongs in usufruct to the living..". This letter is part of a series in which Jefferson and Madison discuss not the advisability of legislating "natural law" and society’s obligations to the future, but the best way to accomplish that goal. There is no record of objections to the Preamble’s "Posterity" reference from Madison or Jefferson, and no indication that objections occurred but went unrecorded.

While the list of intentions listed in the Preamble (i.e.; general welfare, domestic tranquillity, etc.) are important, they can well be characterized as being both individually and collectively general; this is a list of essentially all good things that a government might provide or protect for the governed. It would be hard indeed to define the exact actions that the Preamble asks the government to undertake in order to adhere to the dictates of this list, and it might not be possible to find a more explicit directive in these generalized requirements than: This government is to do good. This generalized good is the purpose and intention of the government that is to be formed under the guidance of the Constitution, and constitutes the primary value that the Constitution is designed to protect.

The ambiguity of the Preamble ends with the enumeration of the specific components of the good to be done by the Government. While the specific actions required of the government to undertake in securing the "Blessings of Liberty et al" are unclear, the group who makes the requirement is well defined; "We the people". Similarly, the beneficiaries of government action are only once stated, and that statement is unambiguous: "ourselves and our Posterity".

The Preamble can thus be reasonably paraphrased as : We the people, in order to do a generalized list of good things for ourselves and our posterity, ordain this government.

The government, it seems, must, in all its actions, serve the needs of two interest groups: "ourselves", or today; and "Posterity", or the future.

5) The Constitution does not require that Congress pass laws protecting the environment.

The Constitution is largely a list of limitations upon the Government. Few Government actions, and absolutely no environmental laws, are mandated by the Constitution. The Constitution does, however, place a severe limitation upon the Government when it states that the Constitution is ordained "for ourselves and our Posterity": the Government must consider the effects of its actions not only upon the present, but also upon the future. If the Government were to take no action that created a harm to posterity, no consideration of, or protection from, that harm would be required. However, if the Government decides to act in a way that is, or might be, adverse to posterity it then becomes necessary to weigh the impacts of that action, and to either balance it with other actions that benefit posterity, or forgo the action. One, but not the only, way for the Government to observe its obligation to posterity is for the Congress to pass legislation that protects posterity. The existence of such legislation can not, however, relieve the Government of its duty to posterity. The Constitution does not require that words be put upon paper, it requires that "We the people" act for "ourselves and our Posterity". Thus the Government’s duty to avoid unreasonable adverse impacts upon the future is quite independent of legislation, and the fact that laws have or have not been passed does not alter the basic need to restrain Government action that unreasonably discriminates against the interests of posterity.

6) The Congress has acknowledged some duty to posterity.

A congressional recognition of the need to balance the interests of "ourselves and our Posterity" is included in the National Environmental Policy Act, which states: "The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of...resource extraction...declares that it is the continuing policy of the Federal Government ..... to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." NEPA, Sec. 101(a)

7) The Government may take action that adversely impact posterity.

Many, if not all, actions have multiple impacts. These impacts are usually, if not always, distributed in both time and space. It would be unreasonable, if not impossible, to set a standard requiring that Government action can not harm posterity. Nevertheless, the Preamble indicates that the Government must act in the interests of both the present and posterity. A line must therefore be drawn between reasonable actions that have adverse impacts, and actions whose adverse impacts are so unreasonable as to be unconstitutional.

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