Constitutional Premise for Sustainability

Preamble to the Constitution of the United States of America

 

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

 From the Fifth Amendment of the Constitution

No person shall be……deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is recognized that the Preamble to the Constitution of the United States, an introductory document, may not be an enacting document.

 

The provisions for enforceable enactment are delineated within the specific Articles and Amendments of the Constitution that follow the Preamble.  This issue has been argued over the course of our Nation’s history. However, what has not been argued to any noticeable extent, but whose intent is obvious just from its inclusion, is that the administering of the Constitution was to be applied to ourselves and our posterity.  

Historically, while terms such as “more perfect union” and “promote the general welfare” have been dissected ad infinitum by Constitutional scholars, little attention or meaningful debate has been given to the term “posterity”. 

It certainly appears a reasonable argument that given this guiding language of the Preamble, that the reference to "persons" within

Science identifies such systems as those with minimum entropy production, and hence minimum rate of decay.** However, when changes are outside the range of  experienced variation, the dynamics are altered, forcing the system to change more rapidly than before, and to decay at a faster rate.


As an example, when the flow of nutrients into Florida’s 33,000-acre Lake Apopka  increased by a factor well beyond historical experiences due to widespread pollution and shoreline disruption, the existing system could not adjust.

The lake underwent a rapid transition from a system in a quasi-dynamic equilibrium with clear water, dominated by eel grass, an extensive littoral zone and a healthy, diverse fishery and wildlife component, to a green, phytoplankton (suspended algae) dominated low diversity system, thrown out of dynamic equilibrium, which proceeded to store excess production as bottom muck. These changes rendered the lake unsuitable for swimming or most recreational uses, with little or no aesthetic appeal. 

the Fifth Amendment would include both ourselves and our posterity. And while it could and has been argued that future generations, which presently do not exist, cannot be given rights per se, it seems quite clear that our Founding Fathers were transgenerational in their thoughts. Consider Thomas Jefferson’s statement in a letter to James Madison.

"The question [w]hether one generation of men has a right to bind another. . . is a question of such consequences as not only to merit decision, but place also 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’.”  

The word usufruct means use without degradation or destruction. And while many have used this Jefferson quote to suggest he was ambivalent towards the preservation of resources for “posterity”, the word usufruct clearly indicates the opposite. Jefferson’s thoughts on this issue likely find genesis in the writings of John Locke in his Second Treatise of Government.

“As much as anyone can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy.”

A rationale argument then could be developed regarding the property rights provisions of the Fifth Amendment, that taking of property through due process of law (eminent domain) is allowable, and that a filter to determine if this due process has been served would be the usufruct intent. By necessity this requires consideration of intergenerational impact. 

While our posterity cannot enjoy the rights granted by the Constitution, because they do not yet exist, there is strong implication that an obligation to posterity is a responsibility of the living— “ourselves”. The nature of this obligation has not been a common item discussed within our court system to date, but it is an issue whose time is approaching, as evidenced by recent lawsuits around the nation. The importance of this issue has become evident in many of our States whose economies are so profoundly influenced by actions which have “spoiled and destroyed” environmental resources held in the Public Trust. 

   

We now recognize that the concept of posterity has scientific implications worthy of serious consideration as well—implications of which our Founding Fathers may not have been fully aware. Progress in Science over recent decades has expanded our understanding of open dynamic systems—such as our society and functional ecosystems--and what conditions enhance their stability and survivability. 

When the Founding Fathers wrote the Preamble and included posterity in the text, they excluded any temporal range or limitation. That is, they did not enumerate beyond their own generation how many generations were contemplated. That they did not include any such limits indicates their intent was to extend posterity as far into the future as possible—i.e. provide the needed stability to ensure extension of functionality.

Logically then, in society’s implementation and administration of the Fifth Amendment and the remaining text of the Constitution, decisions should be such that we do not purposefully threaten the temporal extension, i.e. stability, of posterity for mere convenience to ourselves—that is to consume more than our “share”.

Scientifically, the longevity, i.e. the stability or survivability, of a dynamic open system, such as a society, an economy or an ecosystem, is optimized when over a period of a definable and repetitive cycle, there is balance between material and energy inputs and outputs and there is minimal net change in internal materials and energy. This is the essence of sustainability--minimization of the rate of change. 

Once known as one of the top fishing lakes in the nation, 33,000-acre Lake Apopka in Florida now stands as a nearly abandoned pea-green reminder of how not to manage lakes. Even though it is only 15 miles from Disney World, Lake Apopka is not a major factor in sustaining local economic vigor. The negative impact upon the economy from the degradation of Lake Apopka, while immeasurable, must be considered substantial

Management decisions regarding Lake Apopka were made with an inadequate understanding of lake dynamics (Limnology), and urgency to accommodate our short-term needs and wishes without consideration of posterity. In addition to the loss of fish, wildlife and clean water, there is a long-term economic component involved in the changes within this lake. What would be the dollar value of land surrounding a crystal-clear Lake Apopka today, only 15 miles from Disney World? How many jobs were lost because the lake was devalued? In retrospect, was the sacrifice of Lake Apopka justified, and did the loss of its previous stability impose unfairly upon posterity? If it did, was its purposeful demise in fact unconstitutional?

 

Perhaps actions in the past, such as with Lake Apopka, can be forgiven, as the science was not well understood at the time. But we have no such excuse today. 

We can now expect and project ecological changes based upon increased nutrient loads and flow disruptions. We can project impacts of insecticides upon pollinators, and the influence that distorted flow and salinity patterns can have on fisheries. We know that nutrient rich septic tank effluent can seep into the groundwater and often find its way into downgradient surface waters where it stimulates eutrophication in our lakes and estuaries. We know phosphate deposits are finite and that mobilizing sequestered phosphorus has stressed the nation’s surface waters. But we make little effort to encourage recovery and recycling of this phosphorus once it has been lost. 

We justify our actions by pointing to how many jobs would be lost or how many people would be impacted if we imposed more heavily upon industry or agriculture or society in general to adjust their procedures and behavior to avoid such heavy imposition upon our environment. What we have not asked are how many future jobs will be lost; and how many future lives will be impacted?

It is common to hear of how a growing debt as measured by money is jeopardizing future generations. Little is said in the political arena however about what price “our posterity” will pay from our reluctance to adopt a paradigm of stability and balance regarding our environment and our economy. At question is whether our present behavior is even legal, and what is the legal reach of the Constitutional Premise for Sustainability?  

 

Given these considerations, it is clear the science must be more seriously considered in policy development and in funding allocation. Scientific review must also be objective and scientists must remain unbiased and true to the scientific method. 

Rejecting, ignoring or denying science does not eliminate the inevitability of its influence, and any laws, rules, Comprehensive Plans, regulations, codes, policies, orders, mandates or directives which are based upon a lack of scientific understanding of the issue(s) in question will over the long term likely cost society more than the money it was designed to save. 

Only scientists unencumbered by financial or political interests can assess the nature and impact of this influence. And above all, true sustainability, i.e. pursuing system wide dynamic equilibrium, should be a major filter in determining the wisdom of any such policies and associated budgets.

 * The spelling of “defence” was used by Gouverneur Morris and James Madison who wrote the final version of the Preamble. The modern spelling is “defense”.

** Stumm,W. and E. Stumm-Zollinger. 1971. “Chemeostasis and Homeostasis in Aquatic Ecosystems; Principles of Water Pollution Control” IN Non-Equilibrium Systems in Natural Water Chemistry Hem,J; Advances in Chemistry, American Chemical Society; Washington, D.C.