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. 


  1. This is so interesting, and quite a different point of view from that of our current mindset. “Mindful of its responsibility to future generations…”. Wonderful!
    It reminds me of the ideas of the Iroquois Confederacy (“the oldest living democracy on Earth) and the idea that when they make a decision they consider how this would affect their people for 7 generations: “The Native American model of governance that is fair and will always meet the needs of the seventh generation to come is taken from the Iroquois Confederacy. The seventh generation principle dictates that decisions that are made today should lead to sustainability for seven generations into the future.”

  2. I seriously doubt whether your participation level could be described as “lurking”, which is what I do on Instagram. LOL. The US can’t even prevent current generations from passing along their financial obligations in the way of growing national debt arising from under-taxing corporations and individuals to pay for defense, social security, Medicare, Medicaid, etc. etc. etc. As a result we are passing along a lower standard of living to future generations. That is, unless you believe in trickle-down Econ.

    But it doesn’t end there. The US has for decades accounted for only 6% of the world’s population but 25% of its pollution, so she has not only burdened future generations of her own citizens but also those of every other country on the planet for the external costs of roughly 19% of her economic output. And yet we exited the Paris Climate Agreement under the administration of the former guy, rejoined again this year, but is unable to pass substantive legislation to fund climate change mitigation.

    I see little changing ahead unless and until the American people throw off the shackles of crony-capitalist and racist oligarchy and create a real democratic republic.

  3. One simple change to help protect our environment would be for people to stop littering our streets, sidewalks and parking lots with their used face masks. They don’t appear to disintegrate over time and they could be a health hazard for anyone who picks them up to put in a trash can. A minor part of maintaining a “livable environment” to be sure but one that could be easily resolved and be a lesson to children regarding respecting the environment and other people. Not all problems need courts and judges to resolve.

  4. The wheels of justice very slowly, especially here!

    The concern for future generations? Just take a look at American history.

    Throughout American history, there was no concern for future generations except for the White Wealthy class.

    The generational inequity created by the theft of land from native residents, the destruction of family unity and the disreputable authorization of slavery, why should we think our Constitution could be converted to something other than what it is?

    It’s obvious that our Constitution does not have concern for those who cannot fight against the magnitude of government and the wealth barons that created what we live in now. The wealth, generational wealth and well-being has been stripped from native Americans and African-Americans throughout this country’s history? The governmental led slaughter and its approval of genocide against those groups of people along with the intentional and authorized constitutional interpretation, squeezing these groups out of being legitimately represented by our government? THIS is hypocrisy at its finest and evil and its most heinous!

    The right to vote? A supposed constitutional right! The right to not allow interlopers to trespass on your land to steal natural resources and leave heaps of pollution behind? To not provide appropriate healthcare for the elderly of these groups or the children for that matter? Systemic racism plays a huge part in keeping our resources and viable future generations. And, what is happening right now because of this systemic racist onslaught, genocide is being promoted, inequity is being accepted, and, thoughts and prayers, words of outrage will not change things one iota!

    Joseph Goebbel’s absolutely embraced the propaganda of social and equity and ethnic superiority to annihilate large demographics of humanity by the Nazis! Because of Germany’s history, they definitely have tried to balance future history by being much more inclusive by writing that into their laws. Some laws that would cause riots here I would imagine. Well, not really imagine, because it happened 60s! But laws that are fought against by the privileged in Germany! So, it doesn’t matter where a person is on this planet, you will definitely be discriminated against because of your ethnicity and beliefs, laws be damned.

    What point in history has mankind ever ruled in a magnanimous ubiquitous equality? Never for the most part.

    One of the very few, or really the only one that I could find, were the Jews under the Mosaic law. But, even that went the way of the dodo bird.

    In Leviticus 24:22, the Mosaic law demanded that foreigners, those with different beliefs, different languages, and of course, different ethnicities, be treated exactly the same under the Mosaic law! There was no provision on upholding Jewish law only for the Jews, everyone was afforded the same protection under the law, the same rights under the law.

    Even concerning environmental issues, and health issues, the Mosaic law was explicit in certain dietary restrictions, shellfish, and meat from cloven hoofed animals, the upside of this was, it kept people from getting parasitical infections, the worms from pigs in such (Trichinella spiralis, Taenia solium and Toxoplasma gondii), and liver flukes, Anisakiasis, and tapeworms, but especially Vibriosis amongst others, in shellfish. In Egypt, Egyptian men were so full of parasites, it was called the land of the menstruating men!

    So, some laws are meant to protect health, environment, and ethnic well-being, but the laws have to be followed!

    Like earlier mentioned, there really can be no uniform Epiphany for future generations when left to the bickering and haranguing between political parties and religious groups, those who also feel the need for ethnic superiority. So, unless someone decides to be an authoritarian and force it, nothing will be accomplished! And, who’s to say that authoritarian is going to force the right sort of laws and compliance that will protect everyone AND OR everything, equally?

    Does anyone really feel humanity will become enlightened? We are on the slow slog, which is not so slow anymore, towards self annihilation and self extinction!

    “Just as one has come forth from his mother’s belly, naked will one go away again, just as one came; and nothing at all can one carry away for his toil, which he can take along with his hand. And this too is a grave calamity: exactly as one has come, so one will go away; and what profit is there to the one who keeps toiling for the wind? Also, all his days he eats in darkness itself, with a great deal of vexation, with sickness on his part and [cause for] indignation.” (Ecclesiastes 5:15-17)

  5. Patrick writes, “I see little changing ahead unless and until the American people throw off the shackles of crony-capitalist and racist oligarchy and create a real democratic republic.”

    Seeing that we are an entrenched oligarchy and all mechanisms to break off those “shackles” have been neutered, it will be quite the undertaking unless there is a major revolution.

    The Trump billionaire supporters are now building up organizations, including “think tanks,” to solidify its hold within the GOP. This would be a non-event if the American Justice system functioned properly by holding them accountable for their treasonous acts on 1/6.

    What will be hilarious to watch is while all the pro-working class legislature is bogged down in partisan Congress (which got Biden elevated to FDR status by our propaganda media), there is a proposed bill by Schumer and Todd Young to spend billions subsidizing the oligarchy in an R&D package and build the infrastructure to take on China. Boeing, which receives most of its money from the taxpayers (US Govt), has donated vast sums to West Virginia University to build a defense tech hub alongside Amazon HQ2.

    Watch how quickly all the “partisans” come together on this socialist package for the oligarchy while continuing lamenting over bills intended for the working class peoples.

    Governors in 23 Republican states have kicked the unemployed off federal benefits with nary a word from FDR, err Joe Biden.

    Quietly, Biden has already removed canceling student loans and a public option for Medicare and any remaining progressive agenda items. I think it’s clear that the mid-terms will be lost due to Biden’s middle finger gesture to progressives.

    Trump turned out to be extremely useful to the oligarchs and the DNC. 😉

    If this was a series on TV, I’d stop watching it already. Sadly, it’s what is being pedaled by the oligarchy as reality.

  6. Awesome Todd on yor comments. Most of the working black community are hopeful the next generation will be better integrated as they see steps to moving forward are in play.
    Climate change is a world problem and the US even though it has made great strides needs to lead the way. Interesting how China is still a problem but Amazon receives huge capital from businesses from China whike the CCP continues to build coal plants. Why are they a third nation status when they pollute the world (-30%) without concern. 1/8th of the worlds pop creates 27% of pollution

  7. Whoever thought to make man the steward over all the earth and the animals? That’s just crazy, isn’t it?

  8. Our founders can be forgiven if they didn’t anticipate how our rate of progress is today compared to the entire history of humans before their time. Also what kind of people don’t want better for their future family compared to their personal experience?

    What doesn’t make sense today is to maintain a commitment to keep making the future of civilization more compromised for all by continuing to dump fossil fuel with only the energy removed into the now longer endless sky.

    What kind of animal does that?

  9. Pete,
    Absolutely, what animal does that indeed! Humans have conscience animals have instinct! Instinct can’t be overridden, conscience can be trampled. Obviously it’s not the size of the brain, it’s how it’s used!

  10. “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.” I believe that they have no such reverence, but that they, and the religious movement that espouses this uses it for nothing but manipulative purposes.
    Peggy, as I expect you know, it was only “mankind,” in “his” hubris, that put this forth.

  11. Years ago Carl Sagan warned us that humans are the only life form on earth that can destroy it. Sagan’s concern was directed at Nukes. We were at the same time quietly poisoning the earth with our pollution. Fossil fuels, herbicides and pesticides were among those poisons unleashed on the world.

    We marvel in a way that bacteria like the bubonic plague will kill the host. The plagues sole purpose is to reproduce, even though it will eventually kill the host.

    Humans it seems have become like the bubonic plague bacteria and earth is our host. The plague bacteria may be excused as it does not have the capacity to think about it’s actions. Humans can think about the repercussions to our polluting ways.

    Many have pointed out the dire effects humans are having on the earth. The profit urge is well entrenched at all levels and supersedes conservation and protections to our planet: Bury it, burn it, throw in the ocean just get it out of sight and out of mind, oh and profit off it along the way.

  12. It is my understanding that Native Americans thought about the impact their decisions would have on the 7 generations following them. If only corproations and governments could integrate their wisdom. If only we had the same reverence for all life forms that they did.

    Joseph Campbell stated that we need a mythology that leads us to fall in love with Mother Earth. How can we fail to be in love with her when she is so beautiful and mysterious. This is something that constitutions and legislatures cannot create. I don’t think laws will inspire a capitalistic society to fall in love with Mother Earth.

    I am now reading a Canadian ecologist who discovered that trees communicate with each other and that their interlocking roots and fungi look like the neural connections of the human brain.

    We should not wait for the government to act although Biden wants to do so. We should act. Try living a life of voluntary simplicity which leads to less consumption. It’s a simple and difficult practice in an individualistic society.

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

    If a court is considering “intergenerational justice” in its rulings, it’s not interpreting the Constitution, but instead imposing its own policy views via the guise of interpreting the Constitution.

  14. This sounds like we need a constitutional amendment just to bring us in line with the rest of the world. I wonder what that would like like?

  15. James,

    Excellent point!

    The framers of our Constitution really thought they were geniuses for heavily borrowing against the Iroquois articles of Confederacy. With the Iroquois making peace with its surrounding nations, I believe it was six, it allowed decisions that were considered mundane to be handled locally (federal level). But, the Confederation provided for the protection of all.

    Quite fascinating when you think of how heavily the founders borrowed these ideas from so-called ignorant savages(Articles of Confederation)! Even though they were impressed with their constitutional construct, they still turned on them and drove them to reservations destroying their civilization. And of course selling approximately 5 million Native Americans into slavery along with bringing in 15 million Africans to build this burgeoning agrarian society that the founders wanted to make hemispherical. This was later called Manifest Destiny! And it was built on slavery.

  16. Peggy, M L,

    “Indeed, everyone to whom much was given, much will be demanded of him, and the one whom people put in charge of much, they will demand more than usual of him.” (Luke 12:48)

    “The person faithful in what is least is faithful also in much, and the person unrighteous in what is least is unrighteous also in much.” (Luke 16:10).

    ” Only flesh with its life its blood you must not eat. Besides that, I will demand an accounting for your lifeblood. I will demand an accounting from every living creature; and from each man I will demand an accounting for the life of his brother.” (Genesis 9:4, 5)

  17. I seriously doubt our founding fathers meant to protect our right to life, liberty, and happiness for an instant only and not for the future. Indeed, they risked their own future lives and properties for the treasoness act of signing the declaration of independence. The subsequent constitution was all about securing the future for generations to come. They paid it forward for us. It’s up to us to do the same for our descendants.

  18. Good talk today ! I continue to like John Sorg’s daily inputs….Today’s was particularly on point.

    Our government isn’t broken….it’s OUTDATED in a changing world. This morning I watched a LINK TV Global 3000 documentary…showing recycled clothing being recycled…processed color dyed….FROM VIET NAM. This is typical of industrial growth coming WORLD WIDE….and NOT…within the US I fear.

    Today’s critique of our US constitution is on point….comparing it to Germany’s constitutional equivalency.

    I wonder if Germany can achieve governmental progress….whereas our US government ( our house-senate )…CANNOT. This is simple I think….THE WRONG PEOPLE HAVE USURPED CONTROL OF OUR GOVERNMENT. These republican interlopers will remain…only and unless we American voters…..VOTE THE REPUBLICANS……OUT.

  19. Yesterday I spoke at length with 65 yr old tech engineer.
    He lives in our co-op, which is at 6′ elevation above San Francisco’s north bay.
    He doesn’t believe sea levels will rise. He doesn’t want to care.
    Too uncomfortable.
    Good luck with your pipedreams of smart folks coming together.

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