A Green Constitution?

Despite some remarkable advances in recent years, liberals environmentalists have had a recurring problem with the U.S. and state Constitutions. These documents were authored written by domination-minded white males in the Dark Ages, at a time when everyone was eager to develop the country, except, of course, the Native Americans who knew nothing of casinos.

The enviros' main problem with the Constitutions was and is that they enshrine a quaint 18th century notion about private property. That notion was frequently copied almost word for word from George Mason's Virginia Bill of Rights, adopted in that state a month before the Declaration of Independence. As it appears in Article 1st of the Vermont Constitution today, it goes like this:

"That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
Vermont's constitution writers went on to state (Article 2nd) that "private property ought to be subservient to public uses when necessity requires it, nevertheless, whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money." This was the first written constitution in the world to explicitly declare the right of just compensation when one's property is taken for public use.

So what's the problem? The problem, according to the enviros, is that those authors of two centuries ago were not sufficiently attuned to the needs of ecosystems. By declaring and protecting a human right of private property ownership, they left it to individuals to decide the best use of their own land. Of course, 600 years of English common law put some limits on harmful uses - the courts had long held that "one cannot use one's own to injure that of another". But all in all, this unfortunate right of private property ownership empowered landowners to defy Mother Nature and the Greater Good by using their land as they, and not society, saw fit.

For a long time the effort to undermine this constitutional right took the form of ingenious litigation before sympathetic judges. This gained a lot of ground. In Vermont, for instance, the same court that recently discovered that the Vermont constitution of 1786 required substantially equal tax resources to be available to every student has also discovered that the private property language in the Vermont Bill of Rights only declares some sort of "philosophical truism", and has no force and effect. (Shields v. Gerhart, 1993) The Vermont Supreme Court cheerfully allows government land use regulations to confiscate almost all of the economic value of private land without paying a dime to the afflicted landowner.

But even that liberal construction has not been enough for the enviros. As early as 1988 Sen. Harvey Carter (D-Bennington) offered a proposed state Constitutional amendment which declared that every environmental item including "the beauty of the landscape" were matters of "public good" and any use of those resources required a state permit. At about the same time the state's leading environmental organization, the Vermont Natural Resources Council was beating the drum for a Federal constitutional amendment to the same effect.

Now the push to create a "green constitution" is once again in full swing . Lawmakers in 40 states have introduced resolutions memorializing Congress to adopt an amendment "to protect the natural resources of the nation", a concept which to them includes such things as "the spiritual regeneration that comes from wilderness and nature".

The operative language reads:

"The natural resources of the nation are the heritage of present and future generations. The right of each person to clean and healthful air and water, and to the protection of the other natural resources of the nation, shall not be infringed upon by any person."
The Vermont bill is JRH 14, sponsored by Rep. Mary Sullivan (D-Burlington) and 44 other members ( 38 Democrats, 3 Progressives, 2 Republicans, 1 Independent). Strangely, its text is not available on the Vermont Legislative Home Page.

In plain language, and at a minimum, the sponsors want to allow any person or environmental group to go to Federal court to successfully sue any government agency for failing to stop any use of private land that they don't like. At most, they want to be able to enjoin any private landowner directly from making some use of his or her land that the enviros think infringes upon their expansive view of their rights under the (amended) Constitution.

So far JRH 14 has not moved out of the House Natural Resources Committee, whose chair, Rep. David Deen (D-Putney), is an enthusiastic co-sponsor. With all the environmental groups working for it, the resolution may well move forward in 1998 - especially if the sponsors fear that the 1998 elections might result in a less congenial legislature.

The adoption of such a U.S. constitutional amendment would mean, plain and simple, that all decision making power over land would come to reside in the government, and a single plaintiff alleging harm to the global ecosystem or even an alteration of a favorite view could force even a reluctant government to stop any sort of change in land use or the environment .

The Green Amendment would of course be an inexhaustible gold mine for the environmental plaintiff's bar, and a recipe for acute legal constipation. But that is far from the worst of it. Such an amendment would be the death sentence for a great human right upon which our individual liberties and our competitive free enterprise economy have been erected. And how long would it be before our other great human rights would become dependent on government approval for their exercise?

October 1997

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