Where is Nature in Our Constitution? Part I

by Liam H. McMillin

“In the woods we return to reason and faith. There I feel nothing can befall me in life,—no disgrace, no calamity, (leaving me my eyes,) which nature cannot repair. Standing on the bare ground,—my head bathed by the blithe air, and uplifted into infinite space,—all mean egotism vanishes. I become a transparent eyeball; I am nothing; I see all; the currents of the Universal Being circulate through me; I am part or particle of God.”¹

I. Introduction

I pose to you, dear Reader, this question: where is nature in our constitution? The task at hand, if we can call it that, is to try to find it, to note it in the margins, to see it in our actions, to count it between our fingers, in our amendments and rights. Is it deep seated in our soul, or does it rest on textual ambiguities? Can I find it in the Articles, or the Amendments? Or perhaps in metacognition? Where is nature in our constitution? Where is nature?

“Wait a minute,” you are probably thinking to yourself, “what sort of ‘constitution’ are we talking about? You seem to be combining two definitions, the formational document, and the somewhat flowery way to describe one’s attitude towards the world.”

You are very discerning, my thoughtful friend, and quick to pick up on my tricks. I mean both. But, as you will see (if I do my job correctly), the two are intertwined. This foundational document, the United States Constitution² and our constitution, both contain and interact with nature in the way I will describe it.

Now, you may be thinking to yourself, “okay, now that we are done playing with words, why should we be looking for nature anyway? And why in our C/constitution? Why should I care?”

You are busy, dear Reader, ³ you have things to do, and I will get to my point so you know whether you should toss the remaining pages into the fire and hop on your bicycle and ride into town, or stick with me for the next hour or so:

Most discussions of nature and law, specifically the Constitution, revolve around standing: should nature be given rights itself, separate from humanity’s use of it? Much of this builds on the famous article, “Should Trees Have Standing?” by Christopher D. Stone, ⁴ and its even more famous reference in the dissent in Sierra Club v. Morton.⁵ These discussions are usually framed in terms of extrapolating rights that already exist in our legal system to include natural beings and natural spaces. We will discuss this more in a later part.

But the trouble with this, while well intentioned, is that nature is more foundational and integral to our own existence, in such a way that makes the granting of right to nature inadequate. Nature and humans cannot be so separated where one is a party that grants rights to another party, there is no separation.

Even at this early juncture, you cannot help but interject: “But humans grant rights to other humans all the time? Does that not defeat your closeness argument, only a couple paragraphs in?” A point well-taken. Humans do, of course, grant rights to other humans, which, given the inherent intimacy within the same species, would seemingly support the argument that humans could then, too, grant rights to nature. But I posit that even in this human-to-human granting of rights, the system requires an imbalance of power, a system where one party holds all the rights and gives them to those without the power. Our own Constitution is a perfect example of this, limiting the power of the federal government, those holding the reins, but granting rights to states and citizens and expressly limiting its own powers (more on this later).

This imbalance of power required to grant rights, I argue, belies adequate ways of thinking about and interacting with nature. I argue throughout that within the normal constitutional framework—an established authority that (1) limits its power through express limitations (e.g., enumerated rights, checks and balances, express limitations, etc.) and (2) grants rights to smaller entities, be they states or individuals, in order to, essentially, preserve peace—preserving natural spaces cannot adequately be accomplished by extending typical conceptions of granted rights to include nature. Rather, I write, natural preservation is more comprehensibly and conceptually achievable by an express limitation on human actions and choices in relation to nature. These limitations can—and should—be modeled on our participation within nature⁶, as well as accommodate our ultimate inability to fully grasp nature.

If you make it past this introduction (I do not take your time for granted), I will examine how we think about nature through the lens of the federal Constitution, and these two fundamental aspects of the constitutional structure—namely the negative acts (limiting power) and the positive acts (granting rights)—and how these two types of acts are manifested in both living and non-living entities. Then, extrapolating on Emerson’s writings on nature, I will examine how each Constitutional act can accommodate natural preservation, both conceptually and pragmatically, ultimately arguing that Constitutionally negative acts are more effectively tailored to preserve natural spaces.

II. Nature of Nature

When you think about nature, what do you think of? Swaying pine trees? Rolling waves crashing on the shore? Maybe that perfect little campsite on the shore of Lake Huron, or the desert outside Presidio, Texas. Maybe you think of Hauck Botanical Gardens, the tiny park near my old apartment in Corryville, filled to the brim with oaks and ginkgoes, tri-colored beeches, Chinese lacebarks, only yards away from a Midas and a White Castle.

Nature, often, is relegated to what we call the “natural” world.⁷ We leave it in our national parks, our wilderness areas, maybe closest, our backyard. This, at least by my understanding, fundamentally misunderstands nature. Thinking about nature this way takes it out of our own backyard, so to speak, paints it as “an other,” wholly separate from our day-to-day lives. What this misses, primarily, is that nature is also in us: we are natural. “It is flesh of our flesh, and bone of our bone. But we no longer hold it by the hand; we have lost our miraculous power; our arm is no more as strong as the frost; nor our will equivalent to gravity and elective attractions.”⁸

As Emerson writes, “Philosophically considered, the universe is composed of Nature and the Soul. Strictly speaking, therefore, all that is separate from us, all which Philosophy distinguishes as the NOT ME, that is both nature and art, all other men and my own body, must be ranked under this name, NATURE.”⁹ We, as humans, see the natural world as separate from us because it is in front of us, and our actions even further away.

Nature, in the common sense, refers to the essences unchanged by man; space, the air, the river, the leaf. Art is applied to the mixture of his will with the same things, as in a house, a canal, a statue, a picture. But his operations taken together are so insignificant, a little chipping, baking, patching, and washing, that in an impression so grand as that of the world on the human mind, they do not very the result.¹⁰

What Emerson is getting at here is that we humans have a tendency to view the world in the simplest terms: all things fit into two categories: Me and Not Me. It is difficult to argue against such a fundamental view of our own existence. As one of my good friends put it, more colloquially, “No matter who you are lying next to, the last person you say goodnight to is yourself.” We try and try to bridge the gap, but run up against wall after wall.

Nature, then, fits into Not Me, at least if we are not careful. We step out of our houses and “go to” the woods. But we do often go to the woods to run against the othering, to bring ourselves closer to it. “The stars awaken a certain reverence, because though always present, they are inaccessible; but all natural objects make a kindred impression, when the mind is open to their influence.”¹¹ What is important to remember, for our purposes, is that even in our apparent separation, our going to the woods with good intentions, we are never separate from the woods. WE share the same NATURE with nature.

Let us look at a diagram of a human, a tree, and an animal (in this case a poorly drawn dog):

¹²

Where is Nature in this image? We likely are inclined to draw a box around the tree and the dog: “this is nature”:

But, in truth, what we have drawn the box around is simply what we call the natural world. Nature is shared within us, and the tree, and the dog. The fact we can observe them as “separate” is not a true delineation, but simply Nature observing itself.

Nature goes beyond, and encompasses what we see of our world, what we describe as natural. It is difficult to wrap one’s head around. Nature is the white of this page, and the separation is only shallow, only self-created.

I highlight this balance and difficulty because it is important for our project at hand. Nature, in the way I am discussing it, is in both the woods and in us. This matters greatly for our work later in the text. Hold to it, dear Reader.

But you also have probably noticed that the beginning of this piece emphasized natural space, and indeed, that is also important to our task at hand. What we are looking for are ways to protect natural spaces, constitutionally, but to do so, we need a reason. And the reason is this: natural spaces help us realize that we are not separate from those spaces, that we share the same nature, so long as we are open to it. “The stars awaken a certain reverence, because though always present, they are inaccessible; but all natural objects make a kindred impression, when the mind is open to their influence.”¹³ Natural spaces, the woods, are ever present and steady, but when we walk among their trees and are open to our shared Nature, we can achieve a clarity and a sameness of spirit, a dissolving of Me and Not Me, into Nature.

The trouble, for such romantic Transcendentalists like me, is that people find this difficult. “To speak truly, few adult persons can see nature. Most persons do not see the sun. At least, they have a very superficial seeing. The sun illuminates only the eye of the man but shines into the eye and the heart of the child.”¹⁴ What Emerson is pointing at here is that we see the sun all the time (unless we live in Ohio), but it is so easy to just see the sun, to recognize it there, and to see it only with our eyes, not our whole beings. As Emerson notes, the sun does not just shine on the eyes of the child, but also the child’s heart, because they are open to being amazed, open to the awe-some Nature of the sun. Think back a year or two ago to the utter joy the crowds of people laying in the grass with cardboard glasses shielding their eyes as they looked at the eclipse, the audible gasps, the tears of amazement. That is seeing the sun and its shared nature.

But eclipses only come by the century, it seems; what do we do in the meantime? We head to natural spaces: “In the woods too, a man casts off his years, as the snake his slough, and at what period soever of life, always a child.”¹⁵ We can remember our shared nature in the woods, in natural spaces. We can get beyond our superficial views, see more deeply and clearly the world around us. The same openness we brought to the world as a child, we can reclaim. “In the woods we return to reason and faith.”¹⁶

What is it about adulthood that wrenches us from this openness? There are many reasons, but put simply, I believe it is our obsession with “particular ends,” or finite goals. We get wrapped up in the support of our own egotism, of the success of the self as separate from all other selves and the world around us. But, “[s]tanding on the bare ground,—my head bathed by the blithe air, and uplifted into infinite space,—all mean egotism vanishes. I become a transparent eye-ball; I am nothing; I see all; the currents of the Universal Being circulate through me; I am part or particle of God.”¹⁷ In natural spaces, we can be reminded of our position within a shared universe, a shared Nature, which is namely a position of no-position. Nature does not have particular ends, and being in natural spaces can remind us of that:

In short, the spirit and peculiarity of that impressions nature makes on us, is this, that it does not exist to any one or to any number of particular ends, but to numberless and endless benefit; that there is in it no private will, no rebel leaf or limb, but the whole is oppressed by one superincumbent tendency, obeys that redundancy or excess of life which in conscious beings we call ecstasy.¹⁸

Nature has no particular ends, and we too, in whole, have no particular ends. We may convince ourselves otherwise, convince ourselves of the ultimate importance of our work, our writing (even this particular writing is but “whim” scrawled on the lintels of the doorframe¹⁹), but in the end, it all falls away, and we are left with our Nature, comprised of universal “ends”:

The simultaneous life throughout the whole body, the equal serving of innumerable ends without the least emphasis or preference to any, but the steady degradation of each to the success of all, allows the understanding no place to work. Nature can only be conceived as existing to a universal and not to a particular end, to a universe of ends, and not to one,—a work of ecstasy, to be represented by a circular movement, as intention might be signified by a straight line of definite length.²⁰

This is not nihilistic, dear Reader, but joyous! How ecstatic is it to be reminded of the ultimate emptiness of our actions, and rejoice in our shared Nature with the woods:

The greatest delight which the fields and woods minister, is the suggestion of an occult relation between man and the vegetable. I am not alone and unacknowledged. They nod to me, and I to them. The waving of the boughs in the storm, is new to me and old. It takes me by surprise, and yet is not unknown. Its effect is like that of a higher thought or a better emotion coming over me, when I deemed I was thinking justly or doing right.”²¹

So, where do we find ourselves, dear Reader?²² Preserving natural spaces is important so that we can best recognize the inherent and incessant shared Nature with all life and the universe around us. But, as I highlight soon, it is important that our approaches to preservation also accommodate this understanding as being of the same nature.

More to come in Where is Nature in Our Constitution? Part II.

Cover Photo by Liam H. McMillin

Liam H. McMillin

Liam McMillin is a member of Bricker Graydon's Labor and Employment Practice Group, where his practice focuses primarily on employment litigation, and general advice and counsel. Liam earned his J.D. from the University of Cincinnati College of Law, where he served as the Managing Editor of the Law Review, and was a decorated member of both the Trial Team and the Negotiation Competition Team.

References

1
Ralph Waldo Emerson, Nature, in Essays & Lectures 1 (1983). Following the trend in Emerson scholarship, for the remainder of this piece I will cite to Emerson by reminding the Reader of his name, providing the name of the essay in quotation marks, followed by the paragraph number the quote or reference can be found within that essay.
2
I will capitalize it for clarity.
3
Can you tell I’ve been reading Italo Calvino?
4
Christopher D. Stone, Should Trees Have Standing?–Towards Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972).
5
405 U.S. 727 (1972) (Douglas, J., dissenting).
6
T.S. McMillin dubs this participation as a more active form of the same verb; participance: “To counter the conceptual drift of humans away from nature, Emerson, in other writings, calls attention to special forms of patience and interpretation. Patience and interpretation are related to what I’ve elsewhere called participance, a word denoting a heightened form of participation in worldly unfolding that involves facing up to the challenges and complexity of life, connecting the sundry contexts that comprise that complexity, and truly taking part in nature. Only by taking part in nature can we begin to understand nature and ourselves. That is, to understand nature’s drift we have to understand ourselves as belonging to it.” T.S. McMillin, The Frolic Architecture of Snow: Building on Emerson’s Drift, 26 Thresholds 8, 13 (2003).
7
I recognize the dissonance here.
8
Emerson, “The Method of Nature,” ¶6.
9
Emerson, “Nature,” int., ¶4.
10
Emerson, “Nature,” ch. I, ¶4.
11
Emerson, “Nature,” ch. I, ¶2.
12
I must give credit to my former professor, now Dean David Kamitsuka at Oberlin College, for I have co-opted his Schleiermacher diagram of the infinite refracted through the finite.
13
Emerson, “Nature,” ch. I, ¶2.
14
Emerson, “Nature,” ch. I, ¶4.
15
Id.
16
Id.
17
Id.
18
Emerson, “The Method of Nature,” ¶16.
19
“I would write om the lintels of the door-post, Whim. I hope it is somewhat better than whim at last, but we cannot spend the day in explanation.” Emerson, “Self-Reliance,” ¶7.
20
Emerson, “The Method of Nature,” ¶11.
21
Emerson, “Nature,” ch. I, ¶5.
22
“Where do we find ourselves? In a series of which we do not know the extremes, and believe that it has none. We wake and find ourselves on a stair; there are stairs below us, which we seem to have ascended; there are stairs above us, many a one, which go upward and out of sight.” Emerson, “Experience,” ¶1.

I. Introduction

II. Nature of Nature

Author

References

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