Constitutions And The Future

One of the academic listservs in which I used to participate was devoted to law and courts-both in the U.S. and internationally. Discussions contained a healthy dose of constitutionalism. I say I “participated,” but I mostly lurked–reading the commentary posted by notable scholars in the field, and learning a lot.

One fascinating exchange a year or so ago was triggered by discussion of a case brought by a group of  American children who claimed that government’s inadequate measures to combat climate change deprived them of their implied constitutional right to a livable environment. The case was thrown out by the liberal Ninth Circuit in January of 2020, and someone posted a question to the listserv, asking whether there were any constitutions around the world that would have been more protective of what the questioner termed “inter-generational equity.”

It turned out that more than 50 constitutions have such “inter-generational equity” clauses. Responses also linked to several “protection of the environment” clauses among the 166 currently-in-force constitutions that say something about that topic. 

As if to emphasize the salience of the issue, it was during the listserv discussion that the German Federal Constitutional Court decided a case in which it rejected the then-current plans of the German government to meet climate targets. The decision obligated the German government to rework its plans, and commence planned measures sooner, if not immediately, so as to avoid putting the burden of meeting environmental targets on future generations.

The press release of the Court (in English) is here.

As one scholar opined:

The decision invoked the duty to protect positive rights as part of the obligation to protect negative rights. Or, less abstractly, the decision argues that the only way to protect a negative right (the right to life, toward which the state has the obligation to refrain from interference) is to also protect positive rights (the right to health and the positive side of the right to life, both of which oblige the state to engage in affirmative protection). Other courts have understood the protection of positive rights as necessary for the protection of negative rights like this – particularly courts in the global south like India, Colombia and South Africa – but it has not been so common for global North courts to make this link. This is a huge leap for Germany.
The decision explicitly engages in the intertemporal assessment of rights protection. It weighs the burden on the liberty of people in the future when tough climate goals will kick in against the liberty of those in the present who give themselves a break by putting hard decisions off. And the Court finds that the current government assesses this balance wrongly by not leveling out the burden across generations. The Court therefore defends the intertemporal protection of liberty. Again, a first.

Lest you think that the German Federal Constitutional Court has taken a great leap off into judicial activism in defending against climate change, however, it’s important to note the language of the Basic Law with which they are working. Article 20A of the constitution says the following:

“Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”

In short, the German constitution explicitly requires the state to engage in intertemporal assessment (“mindful of future generations”) and also that the state has an affirmative duty to protect the “natural bases of life.” The Federal Constitutional Court was giving life, so to speak, to this provision and not inventing a right to environmental justice out of thin air. That said, the reasoning of the Court is nonetheless remarkable, especially if the two principles I mentioned above are going to become basic principles of interpretation with regard to other rights as well.

How would American constitutional interpretation change if our courts were required to take intergenerational justice into consideration?

Somehow, I find it hard to believe that our so-called “right to life” Justices would recognize such measures as a necessary consequence of their piously declared “reverence for life,” a reverence that apparently terminates at birth. 

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The GOP’s Interesting Hierarchy of Rights

A recent posting to Facebook got me thinking about the language of rights that dominates our political discourse.

Responding to the over-the-top hysteria about 2d Amendment rights that greets even the most reasonable gun proposals–background checks, for example–the poster (a self-identified Republican) noted that the party’s concerns about constitutional rights have become very selective. Only when guns are involved does the party elevate a “constitutional right” over the right to life.

As he noted, Republican lawmakers defend government when it ignores basic human rights and the Geneva Convention, justifying such behaviors by saying the information so gathered may save lives.

The GOP is completely identified with the pro life movement, a crusade purporting to “save the lives of the unborn” by taking rights away from women. (A substantial number even wants to take away the right to birth control in order to “save lives” that have yet to even be conceived. )

In fact, he notes that the party is increasingly willing to ignore all manner of rights–except the right to own a weapon.

Citing the need to protect against a virtually non-existent in-person “voter fraud,” the GOP has spent the past several years trying to take away the right of poor and minority citizens to vote. The GOP  “fought like hell” to keep homosexuals from having the right to marry, and it fights “against any form of right, or laws both human and environmental that will hurt the bottom line of our campaign contributors.” The party refuses even to consider that healthcare might be a right, insisting that it is a privilege.… “Yet this one. This one right above all others we hold sacred. We refuse to bend.”

It’s an interesting–and accurate–perspective.

It’s also profoundly depressing.

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