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Taking Posterity Seriously: Intergenerational Justice

Contributed by:
John Davidson
Professor of Political Science, University of Oregon

Thesis

The Climate Legacy Initiative seeks to “promote legal doctrines . . . to safeguard present and future generations from harms resulting from global climate change.” Consistent with that mission, CLI should recognize and promote the Stewardship Doctrine, which holds that the existing language of the U.S. Constitution mandates intergenerational justice and – more specifically – the stewardship of critical environmental resources.

Inadequacy of the conventional political process

Global warming is a quintessential issue of intergenerational justice. Whereas the benefits of current CO2 generation accrue primarily in the present, the harms will fall primarily on future generations. While the benefiting parties have present political representation, the harmed parties have none; therefore, the normal political process cannot be relied upon to balance relevant interests fairly. Instead, we bear witness to extreme form of generational cost shifting. In a situation like this, where the normal legislative process is inherently biased, it is natural and reasonable to look to the Constitution and judicial review for possible remedies.

Textual grounds of the doctrine

The Constitution’s Preamble declares that “We the People . . . to ourselves and our Posterity, do ordain and establish this Constitution.” While the Preamble creates no substantive rights, commentators and courts have long recognized that its language bears on the interpretation of other substantive constitutional provisions. See 1 J. Story, Commentaries on the Constitution of the United States § 462 (2d ed. 1885); Texas v. White (1868); Handler et al., “A Reconsideration of the Relevance and Materiality of the Preamble in Constitutional Interpretation,”12 Cardozo Law Review 117, 117-18 and 131-48 (1990). Accordingly, we should recognize “ourselves and our posterity” as the proper beneficiaries of the powers and rights enumerated in the body of the constitution. When, for instance, the 14th Amendment provides that no person shall be deprived of equal protection, it ought to be construed to protect the class of future persons from present discrimination.

Original intent

The most obvious objection to this construction rests on respect for original intent: whether or not posterity rights are a good idea, such rights could not have been intended by the framers, who were unfamiliar with such modern intergenerational threats as global warming, radioactive waste, persistent toxins, or biodiversity loss. Right? Wrong!

Generational sovereignty

Although the framers were unfamiliar with most modern instances of generational overreaching, they were well versed in earlier versions of the same general problem. The framers and their European contemporaries discussed principles of intergenerational justice extensively. They were especially interested in protecting later generations’ political sovereignty from overreaching by earlier generations. The issue was personal to them. In order to sever their bonds with the English king, the founders were obliged to violate a set of explicit intergenerational commitments entered into by their ancestors and set forth in the Magna Carta and English Bill of Rights. To justify themselves, they relied upon John Locke, who had written that, “[W]hatever Engagements or Promises any one has made for himself, he is under the Obligation of them, but cannot by any Compact whatsoever, bind his children or Posterity.”

Jefferson explained in his famous “usufruct” letter to Madison that, “[B]y the law of nature, one generation is to another as one independent nation to another.” This is the gist of the framers’ generational sovereignty theory, and the idea appears again and again in writings of the period. The concern for generational sovereignty manifests throughout the text of the Constitution. It underlies Article V, which recognizes the right of later incarnations of the polity to amend even the most fundamental of social arrangements. It serves as the primary motivation for the anti-nobility clauses of Article I, sections 9 and 10. (Nobility is, by definition, any form of hereditary advantage. As Tom Paine argued in Common Sense, such arrangements represent “an insult and an imposition on posterity.”)

The framers clearly and explicitly sought to prevent earlier generations from instituting policies that unjustly infringed on the sovereignty of later generations. For our present purposes, the key question is: whether this constitutional recognition and protection of generational sovereignty implies or justifies similar constitutional protection for the core environmental interests of later generations? The framers would certainly have answered in the affirmative. For them, the principle of natural resource preservation was ethically and logically prior to the principle of generational sovereignty. This requires explanation.

Entail, usufruct, and waste

Because of the prevalence of entailed estates in Anglo-American society, landowners over time became accustomed to usufructary limitations upon land use. The owner of entailed land effectively possessed no more than a life estate and was not allowed to impair the long term productivity of the land. By the late 1700s, after centuries of this arrangement, a principle of responsible land stewardship had been absorbed into the social consciousness; it had become ethical bedrock. This is why the widely recognized obligation to sustainably steward the land became a model for explaining intergenerational political obligations.

For instance, Jefferson famously stated that, “The question [w]hether one generation of men has a right to bind another. . . is a question of such consequences as [to place] among the fundamental principles of every government. . . . I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living‘: that the dead have neither powers nor rights over it.” In other words, he based generational sovereignty upon generational land rights. Edmund Burke similarly linked political stewardship with estate stewardship. He argued that each generation had an obligation to be mindful of their posterity and to preserve the political system, “that they should not think it among their rights to cut off the entail or commit waste on the inheritance . . . hazarding to leave to those who come after them a ruin instead of a habitation . . ..”

If we asked the framers whether environmental sovereignty logically follows from political sovereignty, they would be puzzled: for them, the logic flowed in the opposite direction. Environmental sovereignty was the “self-evident” truth, from which the political obligations and limitations upon each generation could be logically deduced. The notion that any one generation could justify a permanent wastage of the land itself (or the water or the air) would have been completely foreign and abhorrent to the framers. For a society to behave in such a fashion would be to (in Jefferson’s words) “eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be the reverse of our principle.”

Cause of action / entitlement to relief

Accepting then that posterity are objects of constitutional protection, what are the mechanics for presenting their claims? How, for instance, does one set forth the grounds of jurisdiction and the entitlement to relief required by FRCP 8? Generally, the entitlement to relief will flow from the equal protection clause of the 14th Amendment. When a critical public resource such as the atmosphere is irreparably harmed for the short term advantage of the present generation, posterity’s right to equal protection is implicated. (Because posterity – defined as citizens yet-to-be-born and persons too young to vote – is a paradigmatically disenfranchised class, it falls neatly within the representation-reinforcement theories of equal protection and judicial review espoused by John Hart Ely in Democracy and Discontent (1980) (esp. chs. 4 and 6) and suggested by footnote 4 in United States v. Carolene Products Co., 304 U.S. 144, 152-53 (1938).

In some circumstances, the procedural due process guarantees of the 5th and 14th Amendments will be implicated. For instance, when a contemplated public policy threatens irreparable damage to critical resources, consideration of possible alternatives should be mandated. A “posterity impact statement” requirement might be patterned upon existing NEPA or OMB rules.

Jurisdiction and standing

Asserting these causes of action will be simplest if the claims and the court’s jurisdiction are explicitly authorized by statute. However, the absence of such statutory authorization is not determinative. Article III §2 and 28 USC §1331 declare federal courts’ jurisdiction over actions arising under the Constitution, and cases such as Ex Parte Young, 209 U.S. 123 (1908) and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) indicate that these provisions, by themselves, suffice to support equitable claims for relief from threatened constitutional injuries.

While posterity standing poses some interesting challenges, they are neither unique, nor insoluble. Again, it would be simplest if Congress were to enact special legislation recognizing posterity standing (Joshua Rosenkranz has designed a serviceable statute, modeled on FRCP 23. See Note, A Ghost of Christmas Yet to Come: Standing to Sue for Future Generations, 1 J.L. & Tech. 67, 71 (1986)), but the absence of such a rule is not fatal. As many commentators have noted, most objections to posterity standing mirror similar objections that were once raised to the standing of minors and other incapacitated individuals. And yet, the courts have allowed guardians ad litem to bring actions on behalf of the incapacitated for centuries now, with little or no controversy. The grounds for federal posterity standing can be found in Article III § 2′s grant of equitable jurisdiction over claims arising under the Constitution. See Davidson, Tomorrow’s Standing Today: . . .,” 28 Colum. J. Envtl. L. 185 (2003).

Standard of review

The most appropriate standard of review is strict scrutiny, which would constitutionalize what has been elsewhere termed the precautionary principle: Present policies and practices which pose a serious threat of irreparable harm to critical natural resources should be enjoined unless they are shown to be a necessary (or the least harmful) means to achieve an equal or greater compelling public interest.

The public trust

The public trust doctrine can be understood – at least in part – as a particular manifestation of the intergenerational Stewardship Doctrine. The public trust doctrine prohibits privatization of natural resources that are deemed to be so critical that their administration in the public interest is recognized as a core aspect of political sovereignty. As the Supreme Court explained in Illinois Central RR v. Illinois, 146 U.S. 387, 452-60 (1892) an earlier legislature / generation cannot privatize such resources because to do so unduly infringes upon the inherent power of later legislatures / generations.

No legislature or person may legitimately convey or recognize a private property interest that includes the right to endanger critical elements of posterity’s natural legacy. Such recognition would unlawfully alienate the juris publicum – the shared interest of each generation in the intergenerational commons. This should be understood as a “background principle of property law,” per Lucas v. South Carolina Coastal Commission, 505 U.S. 1003, 1029 (1992).

Conclusion

The atmosphere and the climate belong to all of us, and to posterity. Each generation has an obligation to preserve these critical resources unimpaired. However, unless constrained by some superior authority, neither the economic marketplace nor the legislative marketplace is likely to respect this obligation. Happily, the Constitution provides the superior authority and the appropriate principles to preserve nature’s legacy “to ourselves and our Posterity.”

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2 Comments

  1. John
    Posted January 29, 2008 at 5:35 pm | Permalink

    Professor Davidson,

    Thanks for your excellent article! I teach Constitutional Law but am new to the field of intergenerational justice. I have a few questions about your proposal that I offer in the hope of starting a dialogue:

    1. Do you contemplate challenges to affirmative governmental action under the Constitution, the government’s failure to regulate damage-causing private conduct, or both? I ask because, if non-regulation is being challenged, the Deshaney doctrine — that most government inaction does not raise constitutional concerns — will pose a problem in addition to the justiciability problems you mention.

    2. If you contemplate challenges to affirmative government action, it seems to me that application of strict scrutiny would be susceptible of being criticized as a revival of Lochner. Is there some way for courts to strictly scrutinize the economic legislation that you have in mind while simultaneously maintaining the rational basis review of other economic legislation that has prevailed since Carolene Products footnote 4?

    3. Given these potential objections and the strength of the charges of judicial activism to which they may lead, might it not be more useful to confine use of the Posterity Clause to arguments in favor of broadening the standing doctrine so as to support the justiciability of statutory and common law claims against rapacious *private* actors? Otherwise, doesn’t one run the risk of backlash — i.e., of having the rejection of constitutional claims of the sort you posit being used as precedent to reject (on justiciability grounds) statutory and common law claims against private actors on behalf of future generations?

    Thanks very much in advance for considering these questions.

    John Greabe
    Assistant Professor of Law
    Vermont Law School

  2. John Davidson
    Posted February 1, 2008 at 3:26 pm | Permalink

    Wonderful questions, Professor Greabe! I will attempt to do them justice.

    Do you contemplate challenges to affirmative governmental action under the Constitution, [to] the government’s failure to regulate damage-causing private conduct, or both? . . .[T]he Deshaney doctrine . . . will pose a problem[for challenges to government inaction].

    The Stewardship Doctrine, as presented, can be used to: 1) challenge irresponsible governmental action; 2) support responsible governmental action; and 3) challenge irresponsible “private” conduct. The latter challenges can take the form of actions brought directly against the “private” parties or actions challenging government’s failure to adequately regulate those parties.

    DeShaney itself does not address the extent of the governmental obligation to preserve the public’s sovereign interest in critical resources. The scope of the holding of DeShaney v. Winnebago County, 489 U.S. 189 (1989) is limited to the issue of governmental obligation to render protective services to individuals. However, the broader “state action” doctrine does provide that, normally,: 1) private parties are not the objects of constitutional limitations; and 2) government is not constitutionally required to affirmatively control private conduct.

    The state action doctrine does not bar all Stewardship Doctrine challenges to “private” conduct that irreversibly damages intergenerational sovereign resources. In some cases, the “private” actors are landowners who should properly be viewed as public or quasi-public agents. In all cases, the government, as trustee of the public’s critical natural resources, has the fiduciary duty of any trustee to take affirmative steps to protect the corpus of the trust.

    Landowners as government actors
    Most CO2 production is caused by private landowners (e.g. the corporate owner of a coal burning power plant). These private landownders justify their pollution of the atmosphere as a legitimate exercise of property rights. However, land ownership must not be viewed as “private” in the way that other property rights are private. Property in land differs fundamentally from personal property. Land ownership is not concerned primarily with the possession or disposition of discrete things. Instead, a land title conveys dominion over a three-dimensional territory, and all persons and activity within that territory. In this sense, every private land title represents a recent or ancient grant by government of territory and a concomitant delegation of political power. The continuing exercise of this dominion is likewise accomplished through the active support of government. This inherently governmental aspect of land ownership is inescapable; it is the reason that most of the seminal “state action” cases have involved limitations on the rights of real property owners. See Marsh v.Alabama, 326 U.S. 501 (1946); Shelley v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

    When Peabody Coal creates and implements a preferred land use regime for its lawful domain, it also thereby legislates and implements policy for the atmosphere and climate – central elements of the jus publicum. Perhaps, if Peabody’s abuses of the jus publicum constituted present harms only, government could ignore those harms without violating the Constitution. But that is not the case. The quasi-political powers created and defended by the government are now being employed so as to cause long term, potentially irreversible impairment to critical natural systems. Government cannot create a quasi-political office and then allow the occupant of that office to diminish the core sovereign interests of later generations and legislatures. Private dominion, defined and supported by the state, must be limited and regulated so as to avoid that result; this is the essence of both the Stewardship and the Public Trust doctrines.

    Is there some way for courts to strictly scrutinize the economic legislation that you have in mind while simultaneously maintaining the rational basis review of other economic legislation that has prevailed since Carolene Products footnote 4?

    The irreversibility distinction
    Allowing heightened review of government actions that threaten irreversible damage to core sovereign resources does not open the door, Lochner-style, to heightened review of all economic legislation. The vast majority of government actions do not pose risks of irreversible harm.

    Footnote 4 recognized the difference between “ordinary” economic legislation (deserving of a lenient standard of review) and government action that would negate “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” The latter is the type of situation that the Stewardship Doctrine addresses. An irreversible harm is, of necessity, an irrepealable harm.

    The critical resources distinction
    The Stewardship Doctrine should initially be applied with great caution; holdings should be carefully limited so as to cover only interests on a scale comparable to those described in Illinois Central: e.g. “general control of the state over lands under the navigable waters of an entire harbor or bay, or of a sea or lake;” “trust over property in which the whole people are interested;” “trusts connected with public property, or property of a special character.” The intergenerational interest in preserving the atmosphere and climate of the nation surely satisfies these criteria and warrants an appropriately strict standard of review. By way of comparison, the interest of a dairy company in avoiding government mandated labeling requirements (the economic legislation in question in Carolene Products) warrants no extraordinary attention.

    The non-representation distinction
    It bears repeating that the Stewardship Doctrine focuses on legislation that disproportionately and irreversibly impacts the sovereignty of posterity, who have no present political representation. It is because the affected parties have no representation in the policy formation process that the relevant legislation warrants closer scrutiny. Unlike posterity, the Carolene Products Co. was presumably afforded an opportunity to make its position heard in the political arena.

    Might it not be more useful to confine use of the Posterity Clause to arguments in favor of broadening the standing doctrine so as to support the justiciability of statutory and common law claims against rapacious *private* actors? Otherwise, doesn’t one run the risk of backlash?

    I agree that caution is warranted, for exactly the reasons you suggest. Recognizing posterity’s constitutional interests, in any form and to any degree, is a step into largely uncharted legal waters. Some judge will have to take that first step, and it will require uncommon boldness. It would benefit nobody if we were to make that step any longer or higher than absolutely necessary.

    I also agree with you that legislation and common law initiatives will both be critical elements of any succesful campaign to protect the climate. However, there are three reasons that I do not believe that we should rely on those two legal tools alone to protect intergenerational interests in natural resources:

    1) Common law remedies are local remedies. For some issues, such as preservation of discrete isolated aquifers, local remedies may be practical. For larger, interstate or global common pool resources, local remedies are less practical. Judges will resist, on political question grounds, the creation of overlapping, piecemeal solutions for large, systemic problems.

    2) Offended industries can erase common law victories through superseding statutes.

    3) As explained in my original post, the normal legislative process can not be expected to adequately address intergenerational harms in a timely fashion. To be blunt: so long as money plays a role in the electoral process and there is more immediate profit to be made by despoiling natural systems than by preserving them, the legislative process will be biased in favor of despoilation.

    A constitutional doctrine suffers from none of these deficiencies. It is national in scope (although parallel state doctrines are to be encouraged). It is immune to legislative repeal. Its recognition depends upon the will and judgment of judges removed from the pressures of campaign finance and electioneering.

    I hope these responses are helpful. Again, great questions!

    John Davidson


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