The Environmental Silence of the United States Constitution

• Author: Franklin L. Kury
• Pages: 33-42

33

Chapter 5: The Environmental

Silence of the United

States Constitution

Our Country’s Early Years and the Environment

It is not surprising that the United States Constitution proposed by the del-

egates to the 1787 Philadelphia Convention is silent on the natural environ-

ment and natural resources. e purpose of the convention was to repair the

defects of the Articles of Confederation that had been in eect since the wa r

for independenc e.

e convention devoted its eorts to devising a structure of government

that could obtain the support of thirteen colonies disparate in geographica l

size, population, and economic interests. e result is a document that is a

series of compromises in the allocation of governmental power.

ere was no perceived problem with the natural environment or natural

resources that was ra ised in the convention proceedings, so it is no surprise

that question was not addressed by the fra mers.

ere were, however, ten amendments to the convention’s proposed frame-

work of government document, a Bill of Rights to counter the grant of pow-

ers to be given to the government. e Fifth Amendment provides that no

person shall be “deprived of life, libert y, or property, without due process of

law.” At the time of its adoption no one suggested that its pur view included

the natural environment.1

When the United States Constitution was adopted, no one had any idea

of the vast deposits of minerals, such as coa l, iron, copper, silver, and gold,

resting under the surfac e of the lands in the colonies or in the territories to be

soon acquired, such as in the Louisia na Purchase.

1. Can this provision now be construed to mean that the government has an obligation to ensure a healthy

environment? at is the basis for the Juliana v. United States case now pending in the United States

Court of Appeals for the Ninth Circuit and discussed in more detail in Chapter 9. No court has yet

ruled that this is a correct interpretation of the Fifth Amendment, but the possibility exists. It took

95 years after the enactment of the Fourteenth Amendment in 1867 for the United States Supreme

Court to nd that the phrase “free and equal protection of the law” means that Congressional and

state legislative seats must reect one person, one vote. See Gray v. Sanders, 372 U.S. 368 (1963).