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The
United States Constitution contains a Bill of Rights that guarantees 10
fundamental rights to all American citizens. Yet, though citizens have
private
property rights, nowhere do we have an explicit right to a clean and
healthy
environment, which could also be called an explicit “common
property” right—a
term Sen. Gaylord Nelson used when proposing the first environmental
“common
property” constitutional amendment in the early ‘70s. Living in Constitutional
protection of the environment would fundamentally change the way this
country
approaches environmental management, protection and even
degradation. It would
force us to talk about environmental protection at every level of
American
society. If we reached the point where 38 states support a
constitutional
amendment, we would have moved beyond a marginalized environmental
movement.
And we know a constitutional amendment could protect the environment
because of
the precedents seen in the 12 The
state of In
1999, the Montana Supreme Court issued a unanimous ruling upholding
Montanans’
right to a clean and healthful environment. In an opinion written
by Justice
Terry Trieweiler, the Supreme Court concluded that: “Our constitution
does not
require that dead fish float on the surface of our state’s rivers and
streams
before its farsighted environmental protections can be invoked.”
The Court
also said: “We conclude that the [constitutional convention] delegates’
intention was to provide language and protections which are both
anticipatory
and preventative.” The high court’s decision made it clear: The people
of In
the early 1970s, and again in the mid-1990s, citizens made unsuccessful
attempts
to amend the federal constitution to protect the environment. These
efforts—which ranged from politicians introducing congressional bills
to conservationists
and Native American tribes focusing on the cause—all came to no
avail. Make no
mistake: Passing an amendment to the Constitution is an extraordinary
challenge—it’s
only been done 27 times in our history. The process is long and
complex. First,
the amendment must be approved by two-thirds of the House and Senate
(the
president has no veto power over amendments). The amendment is
then sent to
the states, and 38 of them must endorse it through their legislatures,
typically within a specified time frame.
You may be quick
to remember the failed Equal
Rights Amendment. In 1972, Congress passed the amendment and gave the
states
seven years (and later a three-year extension) to ratify the amendment.
When
the time was up only 35 states had passed it, and the effort died. The
anti-amendment effort coordinated by the conservative right served as a
coalescing force for this then-nascent wing of the Republican Party. But
the fact that the Equal Rights Amendment failed does not necessarily
spell doom
for a constitutional amendment that would protect the environment. In
fact, a
coordinated national effort to gain protection of the environment could
serve
as a uniting force for the disparate arms of the environmental
movement. The
conservation wing of the movement is often woefully detached from
everyday
Americans’ lives. We fight for wilderness, and against logging, mining,
grazing
and even industrial-strength recreation. But at this point in time, it
is rare
that conservation or public lands protection activists work
together with
Native American activists, folks addressing corporate pollution in
low-income
neighborhoods or human health activists, for example. Combining forces
with the
rest of these communities to push for a constitutional amendment would
allow
all Americans to vote for something positive on Election Day. Already,
activists from various backgrounds have been calling for such an
effort. For
nearly a decade, Native Americans have been proposing a “Seventh
Generation
Amendment” to protect common property rights. They point out that
the Fifth
Amendment to the Constitution protects private property, yet no such
protections exist for common property. And Defenders of Wildlife
President
Roger Schlickeisen makes the following point about such an approach:
“Perhaps
most importantly, it could serve as a catalyst, prompting the nation to
move
toward embracing an ecological morality to complement its social
morality.” What
would our strategies and tactics look like if we started solving
environmental
problems using a long-term approach like this? Could Wildlands CPR make
room to
take on one small part of a much larger campaign to amend the American
Constitution? What if all health, environmental, corporate and other
interested
groups each put 5 percent of their organizational efforts toward such a
cause?
I’d like to think that a coordinated effort to pass a constitutional
amendment
could reshape the way conservationists interact with all of the other
people
out there working to make this world a better place. More important,
I’d like
to think that an amendment could fundamentally reshape the way
Americans treat
the environment. Perhaps
David Orr, who argued for a constitutional amendment in the February
2004 issue
of Orion, says it best in his article: “Given the lackluster results
produced
by thirty years of environmental legislation, I believe the time is
ripe for
bold action to head off the worst of what may lie ahead, beginning with
a
constitutional amendment guaranteeing the right to a healthy
environment. If
not now, when?” Bethanie Walder is the Executive Director
of Wildlands CPR. Email her at wildlandscpr@wildlandscpr.org. References: Orr,
David W. 2004. Law of the Land: Can the most powerful nation on
Earth throw
off the shackles of an unforeseen tyranny? Orion 23:1, pp 18-25. Protect
the Earth website of the Anishinaabe Niijii;
http://www.protecttheearth.net/Seventh%20Generation.htm. Schlickeisen,
Roger. 1995. Protecting Biodiversity for Future Generations: An
Argument for
Amending the Constitution; http://www.defenders.org/bio-co00.html. |
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