Posterity -- the Forgotten Directive  

E. Allen Stewart III P.E. –September 2017

Old cypress growth, Lake Norris, central Florida

The Preamble to the U.S. Constitution may be seen as analogous to what we would call a mission statement today. Within the Preamble’s one sentence the specific intent and goals for administering the Constitution are succinctly identified, as are those who should benefit equally from this administering—ourselves and our posterity.

Some may suggest the reference to posterity in the Preamble is merely word crafting, or at most a suggestion. I believe however the wording is unambiguous, and supports the case that posterity is a key part of a clear directive—a directive which has been largely forgotten over our history. Let me call this the Posterity Directive

If indeed this Posterity Directive was the intent of the country’s Founders, the implications are significant and disturbing, for it would mean that the manner by which we operate our present government could be reasonably assessed as unconstitutional. And I say this because we have not established effective, comprehensive methods for evaluating long-term impacts of our decisions, nor do we include defendable projections of how posterity will be affected by our laws, regulations, ordinances, orders and amendments*.  

In case you have forgotten, here is the Preamble of the U.S. Constitution.

We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence**, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Note my emphasis on the word posterity.  Posterity is not a word commonly used in everyday language. Many people confuse it with “prosperity” or “posterior”. The Founding Fathers, with their remarkable command of language, might well have better served the public by using more common terms. For example, in the Preamble, instead of using “ourselves and our posterity”, they could have said “ourselves and our future generations”. But then why use two words, when one suffices?

I do not know if the use of such an uncommon word resulted in the noticeable lack of consideration given the Posterity Directive, but it is certainly true that the importance and meaning of posterity as included in the Preamble has been overshadowed by the abundance of attention given to the other words with which it shares the sentence, such as perfect union, justice, domestic tranquility, general welfare, common defense and blessings of liberty.

Charles Ogle, writing for the Constitutional Law Foundation (www.conlaw.org)*** observed that “the Federal Courts have never spoken on the meaning of the words … ‘and our posterity’ in the Preamble. We are on our own, and must determine for ourselves what the Preamble means.”

John Davidson, also writing for the Constitutional Law Foundation, noted that the posterity reference in the Preamble implies that “all government action and policy (and judicial review of the same) must take into account the ramifications of said actions and policies upon the entire intergenerational community, and seek to balance burdens and benefits fairly among generations. Posterity’s interests are heavily implicated by private or public policies which threaten irreversible destruction of natural resources, or permanent reductions in biodiversity.”

In other words, our actions as a society must be developed such that benefits extend beyond the present population, that is to say our responsibilities are intergenerational. This was expressed by Ann Aiken, United States District Judge, in a recent opinion written in a denial for a motion for dismissal for a case in Eugene, Oregon****.  

“Although I find it unnecessary today to address the standing of future generations on the merits of the plaintiff’s argument that youth and posterity are suspect classifications,

I am mindful of the intergenerational dimensions of the Public Trust doctrine in issuing this opinion.”

This case is one of just a few that brings attention to the obligation we have as a society to posterity through the directive issued through the Preamble, and hence through the U.S. Constitution. The premise of this case is as noted by Aiken:

“Plaintiffs (Juliana et. al.) allege defendants have known for more than fifty years that the carbon dioxide produced by burning fossil fuels was destabilizing the climate system in a way that would significantly endanger plaintiffs, with the damage persisting for millennia…..Plaintiffs argue defendants' (U.S. Government et. al.) actions violate their substantive due process rights to life, liberty, and property, and that defendants have violated their obligation to hold certain natural resources in trust for the people and for future generations.”

But putting all of this legal jargon aside, let me ask. Is it not rather evident that our Founding Fathers wanted us to be as attentive to the needs of future generations as our own? They certainly did not want us to selfishly consume or destroy available resources, leaving none for our children or grandchildren, or great-great-great-great etc. grandchildren for that matter. The majority of people alive today—those born after 1945--are the posterity for whom the “Greatest Generation”***** fought and sacrificed. What if this generation had not been so concerned about us —their posterity? Would we  be enjoying  “a more perfect union, justice, domestic tranquility, the common defence, our general welfare and the blessings of liberty” today?

So let’s get away from the semantics, legal quibbling, and political bickering. If you are like most of us, you love your family, your children and your grandchildren, no matter your political leanings. We do not want to burden them with a world terrorized by global unrest; or whose resources have been expended or lost; or whose environment cannot provide the essentials for life, such as clean air; amenable climate; opportunities for free expression; a safe, diverse and stable environment; available energy; clean water; and wholesome food. At the same time we recognize we should not impoverish the “living” in our attempts to accommodate “posterity”.  Meeting the needs of both ourselves and our posterity is a dilemma that challenges our intelligence, creativity, patience and resolve. But then Americans have always liked such challenges.

I suggest there are three interdependent mechanisms necessary to effectively incorporate the Posterity Directive into society’s current operational paradigm. 

The first is arguing the issue within the courts. If the Civil Rights issue serves as an example, this could be a contentious, time-consuming exercise. It is nonetheless, in my opinion, necessary, for at the end of the argument, the matter should be well defined and solidly imbedded within society’s legal foundation.

The second mechanism is reliance upon market forces to formulate resolution to issues such as resource scarcity, climate change, pollution and ecosystem degradation. However, experience has taught us that a complete Laissez-Faire marketplace is vulnerable to abuse and corruption—note the 2008 recession. For this market approach to be effective, governmental forces need to provide incentives and some degree of regulation. For those who bristle at the suggestion of government incentives and “interference,” it is good to remember that our government currently provides subsidies to the fossil fuel industry, the dairy industry, several segments of the agricultural industry and others.

The complexities of a compromise between  market-driven and regulatory forces are well presented in the book A Poverty of Reason—Sustainable Development and Economic Growth by Wilfred Beckerman (ISBN978-0-945999-85-0). Somewhat atypical of a number of economists, Beckerman is most sensitive to the importance of environmental protection to long-term economic stability, as well as the importance of promoting a free and democratic society. Beckerman is also as critical of well-intended, but ill-directed regulation and emotion based environmental activism as he is of unbridled corporate greed, suggesting such regulation and activism often stand as impediments to development of workable solutions, and can actually exacerbate the very problems targeted for resolution. 

It is hard to argue with this point. I personally have seen government regulations and some so-called environmental organization, intending to protect the environment, dismiss good ideas for long-term environmental rehabilitation in favor of their preconceptions and biases. In future blogs I will share some of these stories, and will offer some ideas regarding the possibility of delicate, but effective coalitions between honest capitalism (no--that is not an oxymoron) and thoughtful government (also not an oxymoron) involvement. We have after all, examples in our history, such as World War II, the Space Race, and implementation of government funded sections of the Clean Water Act (PL95-217) that give us confidence that such coalitions can work.

The third and final mechanism is gaining public acceptance of the Posterity Directive. And of course it is this public acceptance that would be catalyst for both court activity and shifts in the market.

It would seem that public acceptance of the Posterity Directive would come easily,  since convincing people that they need to care for the future of their grandchildren, and their grandchildren’s grandchildren should not be difficult. The problem is with peoples’ perception of how much they are willing to change their habits and lifestyles in order to do so. 

The most common argument I have heard has been the need not to burden our children with “crippling debt”. This is often used as a reason for budget- cutting and restricting discretionary spending—which at times includes spending for environmental rehabilitation. But financial debt is not the only threat to our children’s future. Of greater concern is the sustenance of critical resources necessary for life. After all, one cannot eat money. Money retains value only as a means of obtaining necessary resources such as food, water, energy, air and shelter. If our biosphere (earth) and society cannot provide these necessities, money has no value.      

I believe there are several reasons why we currently do not see widespread recognition or acceptance of the Posterity Directive, or earnest efforts to conform with the Posterity Directive.  These include:

  • Resistance to change. If we decide to cater to the needs of posterity, it is commonly held that this could disrupt our present system and lifestyle, causing loss of jobs and economic turmoil. Note the reluctance to promote and implement renewable energy. What would happen to the economic support provided by the fossil fuel industry? How many jobs would be lost? These questions are often asked without asking how many jobs would be created through a renewable energy industry, and what would be the economic worth of any reduction in pollution.

  • A belief that technological advances will rescue us in the nick of time. (This is a common argument offered by some economists—typically those who have never taken a course in ecology or engineering.) But when disrupted, natural dynamics can be irreversible, and unpredictable. For example the unanticipated predominance and widespread damage from toxic cyanobacteria--a type of  Harmful Algae Blooms (HAB) which negatively affected fisheries and  human health last year in coastal Florida.

  • A lack of trust in science. Communications campaigns purposely targeting the scientific community have created some distrust of scientists within the general population. Scientists are often labelled as “liberal academicians” or “radicals” who are out of touch with the demands of everyday life.  They are often accused  of striving to modify society according to  their vision without consideration of economic impacts. This is the very concern expressed by Beckerman, and his argument in some cases is not without merit.

  • Capitalism is an essential component of American Democracy, but powerful corporate interests often work to protect their own short-term interests at the expense of long-term stability—both environmental and economic. Think about the misleading concept of “clean coal” or the selling of large gas pipelines as essential for national security and the creation of jobs. Milton Friedman, a recognized economist, an ardent defender of American capitalism, Nobel prize winner, and author of the book Capitalism and Freedom, clearly makes the point within his book that "there is one and only one social responsibility of business–to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.” This does not mean that a corporation cannot impose some degree of social responsibility upon itself, only that it is not required, nor expected. Of course what Dr. Friedman failed to recognize when he wrote this in 1962 was that the rules of the game which he suggests in this quote as a modulator of greed, are very often written through political corruption by corporations themselves—those who are regulated often write the regulations themselves. Corporations should not be given authority over the Posterity Directive.

  • Scientists can often be their own worst enemies. My experience with some within the scientific community is that they can describe and understand processes, but are often poor practitioners when it comes to explaining and applying these processes. In addition, some scientists have abandoned the scientific method when offered financial rewards for supporting deceptive and potentially injurious policies. One only needs to think of the case against cigarettes or more recently the evaluation of the herbicide glyphosate. These campaigns, intended to protect short-term profits at the expense of our posterity, are designed to confuse the American people about what and whom to believe, and about what is true and what is “fake” news.

  

In summary,  the American people are joined by a common concern for their future generations, but separated by  disagreements as to how to best protect them.

So here are some suggestions. Let the courts and lawyers continue to argue as to the validity of the Posterity Directive. Meanwhile, recognize that there are legitimate issues related to protection of our critical resources, and we need to take measures to ensure these are sustained for ourselves and our posterity. We do not need to do this in one year, or even one decade, but we do need to establish and implement programs that allow us to transition into a more protective arrangement. To do this we need to elect persons capable of making decisions based upon long-term issues in the best interest of their constituents. 

We also need to be willing to listen carefully to all arguments without preconceptions or the influence of unyielding dogma. We should seek the truth regarding the interdependence of our economy and our environment and remember that  the stability of one influences the stability of the other. 

We need to find a scientific community which can explain this truth to us in language we understand, and with true objectivity. And finally, we need to use our power over the markets. Why would you want to purchase products whose purveyors show no concern for the human condition, the protection of our critical natural resources, or the welfare of posterity? In some cases of course we may have no choice, at least not presently.  But we can make our concerns known both at the ballot box and at the cash register. This can facilitate the change we all seek  - a good life for us now, while better protecting our children, our grandchildren, and our future generations—our posterity.  

*  One could argue that the financial review done by the Congressional Budget Office (CBO) serves the purpose of projecting long-term impacts, but their assessments are strictly financial, and are comparatively short-term, i.e. about 10-20 years.     

**  Defence is the old spelling of defense, as used by the Founders.

***  Does the United States Constitution Provide Environmental Protection? 

Presented by the Constitutional Law Foundation at the L.A.W. Public Interest Law Conference, at the University of Oregon, 7 March 1998

**** Kelsey Cascadia Rose Juliana et. al.  v.   United States of America et. al. Case No. 6:15-cv-10517-TC   

*****  A term created by Tom Brokaw in his book “The Greatest Generation” for those who fought and won WW II.