"The right of citizens of the United States to use and enjoy air, water, wildlife, and other renewable resources determined by the Congress to be common property shall not be impaired, nor shall such use impair their availability for the use of future generations".
Gaylord Nelson, founder of Earth Day, had a similar vision.
“The Common Property Amendment”
In the last 30 years, the United States has made impressive progress in Legislation and programs for environmental protection and conservation of natural resources. Landmark acts of legislation passed since the late 1960s -- National Environmental Policy Act, Clean Air Act, Clean Water Act, Endangered Species Act, and others -- have stopped or reduced pollution and protected and restored habitat. All Americans should be proud of these accomplishments. That is the good news. The bad news is that our edifice of environmental legislation is built on a foundation of constitutional sand. Well-meaning legislators, responding to the needs and desires of the people, have stretched and twisted the Constitution of the United States to support environmental legislation. These laws are not on solid ground. The legislative accomplishments and the funding that implements them are vulnerable to attack and reversal. What Congress does, Congress can undo. Congress has passed environmental protection laws based on several indirect constitutional powers. Article I, Section 8 empowers Congress to "regulate Commerce ... among the several States". This power has been used to say, for instance, that water flows between states, so Congress can regulate water quality. Article I, Section 8 also gives Congress the power to spend money, so Congress may chose to spend money to build local sewage treatments plants. The President, with the advice and consent of the Senate, has the power to make treaties (Article II, Section 2), a power that has been used to protect migratory birds that cross international boundaries with Canada and Mexico. Lacking any specific prohibition in the Constitution, courts have generally acceded to the other branches in the interpretation of their constitutional powers. Nowhere does the Constitution say that the federal government has a responsibility to protect the environment or the public health and safety. We have no explicit rights under the Constitution to a clean environment. We propose not to change existing environmental legislation, but to "lift up" the current body of laws and put a firm foundation under it -- to state that indeed it is a responsibility of our federal government to protect the environment, and that the people of the United States have a right to clean air, clean water, and functioning ecosystems. The key concept in the proposed amendment is not currently articulated in the Constitution, that is common property, or the commons. Common property consists of those things that cannot by their nature be owned by a individual or corporation. Whose air is it? Whose water flows down our rivers and through the ground? It is all of ours; it is common property. The wildlife, the functions of the ecosystem don't belong to anyone; they are common property. What is common property? It includes air, water, wildlife, and functioning ecosystems. Certain lands (such as national parks, forests, and wildlife refuges) may also be included to protect the plants and animals that live there or critical ecosystem functions. The concept of common property counter-balances another concept that is articulated in the Constitution, that of private property, but the amendment will not take private property. Private ownership of land and other property is fundamental to our society. Owners of private property should be able to use it as they see fit, for their own enjoyment, for their own gain. This is recognized in the Fifth Amendment, part of the Bill of Rights, which recognizes that private property cannot be infringed upon, cannot be "taken" for public purposes. The Fifth Amendment is the basis for a great deal of litigation and has been the basis of "takings" legislation; which would restrict actions of the federal government in regulating the use of private property. We think that private property is rightfully protected under the Fifth Amendment. However, some uses of private property have wrongfully infringed on other fundamental rights of all the people that are not adequately articulated under United States law. If someone is using the common property for private gain, with a result of fouling or depleting the commons, that is a "taking" in reverse, a taking from all the people. This concept needs to be enshrined in our most fundamental law, the Constitution, just as a taking of private property is prohibited by the Fifth Amendment. The current system of laws has spawned a great deal of litigation over the questions of private property versus environmental regulation. One legal scholar wrote that there is a "blurred and wavering line" between the rights of a private property owner and the rights of the government to regulate the use of private property for environmental protection. There are no clear-cut answers. The U.S. Supreme Court has often decided such cases by a slim majority, first one way, then the other. As a result, private property owners don't know what their rights are. Government regulators don't know the extent of their powers and responsibilities. So they go to court to fight it out. Our society has not reached a satisfactory conclusion on these issues. Defining and protecting common property in the Constitution would protect the rights of all of us and our posterity, and would also benefit the private property owner by drawing more sharply the "blurred and wavering line" that protects private property from taking. The priorities of the U.S. federal government include, of course, such things as national defense. We think the priorities of the federal government, and government in general, should include environmental protection and conservation of natural resources. Former President Bill Clinton said in his 1996 State of the Union message: "The era of big government is over." There is heavy pressure now on all programs and activities of government to downsize, and to eliminate those activities that are not essential. Environmental protection and resource conservation should be recognized as proper roles of the federal government, and indeed, as a priority of the government. When he ran for president, Bob Dole carried a card in his pocket with the Tenth Amendment printed on it. The Tenth Amendment states that any powers that are not explicitly given to the federal government in the Constitution are reserved to the States and to the people. If the Tenth Amendment is closely followed, many things that the federal government is doing now would not be done, and we would move backwards in terms of federal programs to protect the environment and to conserve natural resources. The Common Property Amendment would clearly identify environmental protection as a priority of the federal government as called for by the Tenth Amendment, would counterbalance the protection of private property afforded by the Fifth Amendment, and would implement an important but forgotten clause in the Preamble to the Constitution which says that one of the purposes of the Constitution is to "secure the blessings of liberty to ourselves and our posterity". What are the blessings of liberty? Don't they include the freedom to breathe the air, to drink the water, and to enjoy the blessings of functioning ecosystems? Don't we want to pass these blessings on to our posterity? The framers of the Constitution were visionary in this respect, that they did look ahead to future generations, to the Seventh Generation. They just didn't get into all the details of defining what the blessings of liberty mean. We propose to update the Constitution to define those blessings to include the protection of our common property. The proposed amendment reads as follows: "The right of citizens of the United States to use and enjoy air, water, wildlife, and other renewable resources determined by the Congress to be common property shall not be impaired, nor shall such use impair their availability for the use of future generations". Certainly it is audacious and extremely ambitious to be proposing an amendment to the Constitution of the United States. Constitutional amendments don't happen very often. It takes 2/3 of both houses of Congress to approve an amendment, then it must be ratified by 3/4 of all the state legislatures, and in many cases a time limit has been placed on the ratification period. This is not an easy process, and will take a tremendous amount of public support. It is a major undertaking. Amendments to the Constitution are rare. There have been 27 amendments in the history of our country. Ten of those were the Bill or Rights, ratified in 1791, which can be considered almost as part of the original Constitution. (Several of the states would not have ratified the original Constitution if they had not been assured of passage of the Bill of Rights.) Of the 17 other amendments, 6 deal with government operations, (such as presidential succession), 5 deal with voting rights, and 2 deal with prohibition of alcoholic beverages. Very few amendments deal with fundamental rights of the American people. So it would be an extreme rarity in the history of our country if this amendment were to be approved. Under the best of circumstances, we expect a long process of consideration. Even if the proposed amendment is as good as some people think it is, we expect a 20 to 25 year struggle before it could possibly be put into effect. Yet this is the time to do it. We are in an era of change. A generational change is occurring in the United States. Historians William Strauss and Neil Howe suggest that generational types have recurred in this country in a four-generation cycle since the first European colonists. According to their theory of generational cycles, we are starting to raise a generation of builders and doers, children who are now being born or are in grade school or middle school. The parents of that "millennial" generation are the baby boomers, who tend not be builders, but to be idealistic, people of ideas. Now we have a generation of young people, 15 years old and younger, who are of the type that won World War II and the Revolutionary War. This is a generation that will do great things, and the idealistic baby boomers will be the ones who give them ideas, who set great tasks before them for the younger generation to accomplish. One of those tasks is to finish the job that we started in the 1960s and 1970s to protect the environment, to conserve resources, and to restore habitat. If we can lay out a great task for the millennial generation, they will take that task and finish it. This is why the timing is right for this proposal now. The idea also provides a rallying point for environmentally concerned citizens. We are fighting many battles over mining, wetlands, forests, non-point source pollution, and so on, and the environmental movement can get fragmented at times. These day-to-day battles are very important, and we must keep fighting them all the time, but the amendment would provide a longer-term goal, a flag to rally around, that might be very helpful to the environmental movement. On the other hand, the amendment should not be considered as strictly an environmental issue. Ideally the proposal would also be embraced by the people who are concerned about the rights of owners of private property. It would provide some certainty, greater security and freedom to private property owners, who would know more clearly the extent of their rights. If the amendment is going to be successful, it will take very broad support, not just from people who call themselves environmentalists.
PRESENTED BY THE SEVENTH GERNERATION COMMITTEE
Tom Bushian, Robin Goree, Walter Bresette, Frank Koehn, Neil McClelland