By Lawrence Friedman
Chileans have begun the process of rewriting their constitution, and they are doing so, as the New York Times recently reported, with environmental and health concerns squarely in mind. The constitutional convention plans to consider, for example, how best to regulate industrial mining, and to protect the nation’s water supply. As well, the convention seeks to identify and adopt the governmental structures most compatible with the preservation of the values at stake.
These are no small tasks, and no doubt the members of the convention will consider the constitution-drafting experiences of other nations, including the United States. The U.S. experience includes not just the federal constitution, but fifty-one subnational constitutions—all fifty states and Puerto Rico. Moreover, when it comes to the protection of specific substantive values, like the environment, design elements of several U.S. subnational constitutions point in a different direction from that of the federal constitution.
The U.S. Constitution exemplifies endurance. In part, this may be because it remains focused on process, procedure, and limits. The body of the document spells out the process for making law at the federal level and the power of the respective departments of government, but it does not require that the government address particular issues. And, while the Bill of Rights embraces specific commitments to values like free speech and freedom of religion, these are expressed in purely negative terms—in other words, they constrain what government may do in certain instances, rather than mandate what government must do.
Under the U.S. Constitution, the protection of substantive values – like preservation of the environment – depends upon the existence of the political will for executive or legislative action. Indeed, even when popular sentiment supports, say, efforts to address the consequences of global climate change, still the majority will may be thwarted due to structural features of the U.S. Constitution, such as the electoral college system, pursuant to which the presidential candidate who received the most votes may not win election; and the makeup of the Senate, to which the Constitution guarantees each state two representatives regardless of population.
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In contrast to the U.S. Constitution, some state charters more directly pursue specific values. These constitutions contain commitments to positive rights—rather than limiting government, they obligate it to seek substantive ends. For instance, the constitution of the Commonwealth of Pennsylvania contains a provision establishing that the people of the state “have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Under this provision, the state has the responsibility to “conserve and maintain” these values “for the benefit of all people.”
Of course, it is one thing for a constitution to embrace the proposition that the environment should be preserved and quite another for government actually to effectuate such preservation. Consider the experience in Pennsylvania. There, because the environmental preservation provision does not contemplate the issue of enforcement, litigation aimed at giving effect to its commands has often failed. In many instances, courts have concluded, not without reason, that judicial enforcement depends upon some initial action or authorization by the state’s legislature.
For a court to compel the other departments of state government to act to protect environmental concerns, such as by ordering budgetary expenditures or otherwise allocating resources to environmental protection, would involve a certain amount of risk: the legislature or the executive might simply ignore the court’s order, thereby undermining the judiciary’s legitimacy. Neither is it clear that judges, as opposed to electorally accountable political actors, are in the best position to oversee determinations about what environmental preservation should look like in practice.
A constitution is no ordinary legal document; it is basis for governing and for the relationship a people will have with their government. As the members of Chile’s constitutional convention go about their work, they should give thought not just to how commitments to substantive values ought to be articulated in the constitutional text, but how those commitments realistically can be enforced—and by whom. Positive rights may be assumed to entail an obligation by government to take action, but the experience in Pennsylvania and other states shows that, without an enforcement mechanism, a promise to preserve the environment may well be seen as empty.
Lawrence Friedman teaches constitutional law at New England Law | Boston and has written widely on issues of state constitutional law.
