Where is Nature in Our Constitution? Part II

III. The Nature of the Constitution

Our Constitution, the many-signatured, yellow-cornered, living (or dead?) document. Touted for its promotion of freedom, criticized for its antiquated ideas. As “Constitutional Scholars” go, I will admit, I do not carry the same depth of knowledge as some of my classmates, and you will have to bear with me as I stumble though the following theoretical analysis.

An important note before we dive in: as mentioned at the beginning, I chose my title carefully, and I think it is important to think of the Constitution as “ours.” Not in the libertarian, sovereign-citizen sense of ours (as in “not theirs,” them being the government), but in the sense that we should take ownership of the Constitution as something we uphold by our own interactions with the world around us. I will return to this idea later.

Perhaps, conceptually, this “ownership,” which really is more of a commonality, is similar to our commonality with the natural world: inherent, reflective, and shared, but with default sense of separation. How it differs, however, is that the Constitution attempts to prescribe how we interact with each other and the world around us, while nature has no ends. At its best, the Constitution, purportedly foundational and immanent, responds to Nature. At worst, it runs in the face of it.

A. What the Constitution Does

For the purposes of this broader discussion, we must take a brief, but focused dive into the nature of the constitution, or, in other words, the constitution of the Constitution. This foundational document does a lot of different things, between establishing the structure of our branches of government, and flip-flop on whether or not we should be able to have a cocktail. Perhaps its foundational role, and likely the most obvious to casual and nerdy Readers alike, is to protect the rights of the people within its borders. What the Constitution, and those drafting it, recognize is that establishing an authoritative system for ruling only works if there is a balance between the authority of the ruler and the autonomy of its subjects. Why do we spread our bald eagle wings across the world, sowing seeds of “democracy”? Because we found, and continue to find, this balance worthwhile, and even integral, to living a “good life.”

How, then, does our Constitution achieve this balance? It does so, by my reading, by protecting the rights of the “subjects”—namely the entities smaller than the federal government, specifically individuals and states—in two different ways. These two ways are what I describe as positive and negative actions. The Constitution deals with rights in two semantically distinct ways: positively, by extending specific rights to individuals and entities, and negatively, by limiting its own power to act. In both actions, the Constitution is protecting rights, but how the Constitution acts, which can only be through its words, and how it arranges the words, matters.

By way of example, let us look at a handful of the Amendments. Each right in the Constitution can be classified as a positive or negative action, but we need not spend the whole day in explication. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”¹ There are many famous rights included in this sentence: freedom of religion, freedom of speech, assembly, petition. But how the text establishes those rights is important. The Amendment does not read, “All people within the jurisdiction of the United States of America shall enjoy the right to be free of an established religion, the right to freely exercise their own religion, the right to speak freely, to enjoy freedom of the press . . .” etc., etc. The rights themselves are essentially the same, but in the latter, the government is granting, or giving the rights to the people, and in the former, the government is limiting its own ability to infringe on those rights.

Compare that to the subsequent Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”² Here, the text establishes a clear “right of the people.” The right “shall not be infringed” upon, which indicates some negative action on the part of the government, but the language itself is more indicative of a positive right, given to the people, and solidified with a quasi-double-negative.

This sort of positive action is even clearer in the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .”³ Here, the “accused” are given the rights that follow, they “shall enjoy” them. The text does not prohibit the passage of laws that interfere with these rights but give the rights directly to the accused.

This differs semantically with the First Amendment, as mentioned above, as well as our next example, the Fourteenth Amendment. In Section 1 of the Fourteenth Amendment, it reads in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”⁴ These famous sentences are a perfect example of negative action: the government is limiting its ability to deprive its people of these rights. The people themselves enjoy the right to due process and equal protection, the rights of life, liberty, and property, but the language of the amendment focuses on the government’s role in relation to these rights.

This is why I have dug so deeply into the semantics: who the text is focused on when it protects rights matters. Does it focus on the governmental action, limiting its own power (i.e., a negative action), or does it focus on the people, giving them the ability to enjoy that right (i.e., positive action). The difference in focus matters because it changes how we think about the right. Ask yourself, what right feels more solid, more unshakeable: the freedom to freely exercise your religion, or your right to bear arms? The right to equal protection, or the right to a “speedy” trial? Look no further than the Dobbs decision when it comes to granted rights to privacy or bodily autonomy: positive actions, rights given to the people, are much easier to discount, than restrictions on governmental action.⁵

This matters greatly for our discussion of Nature, both for the longevity of protections, and the conceptual aspect as well. How we draft our laws reflects how we think about those relationships. It matters whether rights are given, or if they are established by limiting the power of the authority. As I discuss below, there have been both positive and negative actions to protect the rights of nature. In the section that follows, I examine these two types and approaches, tied more carefully to our focus.

B. Granting Rights to Nature

Perhaps one of the most famous questions posed by a law review article (at least when it comes to the environment and land preservation) is whether trees should have standing.⁶ Christopher Stone posited this question in 1972⁷ and it was echoed by Justice William Douglas in his dissent in Sierra Club v. Morton.⁸ The conservational approach outlined in Stone’s article focuses on the extension, or rather extrapolation, of already existing legal rights to the natural world.⁹ As he notes, there is a history of such extensions to non-human beings: boats, for example, or corporations. What Stone argues is that under current law (when he was writing, 1970s, not much is different now), there is a gap that should be filled by providing nature with its own standing. The example he gives is that of an upriver polluter. Say a farmer dumps gallons and gallons of toxins into a stream, killing aquatic plants, animals, algae, etc. Legally, the only remedy available (beyond perhaps some administrative regulations) is if another human being, downriver, suffers some economic harm: perhaps his aquatic garden is destroyed, or he is denied enjoyment of the stream. The downriver man can sue the farmer for his loss, but what about all the other damage to the stream and its ecosystem? How do we remedy this, under the law? Stone’s proposal is to allow a lawyer to sue on behalf of the stream and recover damages that would be used to the stream’s benefit (e.g., clean-up efforts, etc.). This would, in theory, have the normal effect such legal remedies provide: deterrence and the ability for an injured party to be made whole. It fills a hole that seemingly needs filling.

This seems to be how Justice Douglas thought of it in Sierra Club v. Morton. As he writes:

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction. . . .

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Perhaps they will not win. Perhaps the bulldozers of “progress” will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?¹⁰

Douglas speaks of the “voice” of the natural world, and the benefits of allowing those who listen to that voice being able to speak for those values. The question, as he poses it, is simply whose voice should be audible? He focuses on the benefits of the natural world as “environmental wonders,” and the interconnectedness of the life contained within natural space. Just as the river speaks for the “ecological unit of life that is part of it,” so too do the woods, and the mountains, and the sea. We cannot separate natural space from the life that lives within it, all of which deserve to be able to speak.

A more recent approach of extending granted rights to the natural world, although slightly more contemporary, came from the Ninth Circuit in 2021. In Juliana v. United States, the Ninth Circuit held that it was unable to order the federal government to adopt “a comprehensive scheme to decrease fossil fuel emissions and combat climate change.”¹¹ The case, brought by an environmental group named, Our Children’s Trust, argued that the Constitution guarantees an unenumerated fundamental right to a “stable climate system.”¹² The district court denied the government’s motion to dismiss, which was appealed to the Ninth Circuit. The appellate court reversed on standing grounds. Although some of the plaintiffs could show a particularized injury (which is already a positive step), the court found that the relief requested by the Trust, namely a national policy addressing climate change, was beyond its constitutional power.¹³

Readers of Juliana have argued that its reasoning is more sweeping than first glance would indicate:

By suggesting that Article III courts cannot order injunctive relief unless constrained by ‘limited and precise’ legal standards, Juliana subtly but significantly narrows the remedial authority of federal courts sitting in equity. In particular, it is not clear how ‘structural-reform’ injunctions—in which courts require schools, firms, and other social institutions to change their behavior in order to make amends for past lawbreaking, most notably racial discrimination—fit within Juliana’s vision of the judiciary’s remedial powers.¹⁴

What the Juliana case, combined with the lack of application of Stone’s standing theory, indicates is that neither small, individualized remedies, nor broad sweeping remedies, are likely to be adopted by U.S. courts. In fact, many courts have laws stating the exact reverse. Ohio, for example, has a statute that reads: “Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas.”¹⁵

Even these approaches that grant rights to nature, or extrapolate existing rights to include natural spaces, are flawed. As discussed more in the next section, the difficulty with the approach of granting rights to nature is that it requires nature to “stand” for itself. Our legal system requires that a party make its own case: nature, in its immutable knowledge and understanding, cannot participate in the legal system in the way the system requires. Bear with me, dear Reader, we will come back to this later.

C. Constitutional Amendments

There are, of course, other ways to incorporate and protect nature within the law. Do not fret, dear Reader, we are not stuck with solely standing arguments! Many thinkers, better than I, have found or are finding ways to incorporate nature into their constitutions directly. While it is true, my cynical Friend, that changing the Constitution, especially the U.S. federal Constitution, seems impossible in our current political climate, for the moment, suspend your cynicism.

Let us fly together to the Adirondacks, the small mountain range in upstate New York, formed roughly two billion years ago.¹⁶ Roughly two billion years later,¹⁷ the people of New York enacted Article XIV, titled “Conservation.”¹⁸

Let us start where it starts: “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as of now fixed by law, shall be forever kept as wild forest lands.”¹⁹ Did²⁰, and meant to protect the forest, no less. And what lasts forever? The land “shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.”²¹ ²² Notice, unlike our standing arguments from before, there is no mention of standing, no requirement that any person or thing recover damages. Rather, the legal remedy is simply to “restrain” the “violation.”

This is a perfect example of a constitutionally negative action. The State of New York, through its people, has expressly limited human use of its forest lands. While there are caveats, carve outs, and amendments promoting different sorts of uses, there is still reason to rejoice in the longevity of this amendment, and its expansion rather than its limitation.

These constitutionally negative acts, limiting human use of these natural lands for their preservation rather than granting nature rights, better account for the conceptions of nature I hope to encourage. They are proactive and preventative, rather than reactive. What good is money to a tree that has already been chopped down? Sure, planting another tree is worthwhile, but why not preserve the first and plant a second? Math is not my strong suit, but two is better than one by just about any metric.

The pragmacy of prevention is coupled by the benefits of restriction on human use to humans. Humans and the natural world share nature, as we have discussed before, but we humans are apt to forget this. We get swept up in our own “wisdom,” emphasizing our separation from nature, even in our promotion of preservation: “Nature is . . . mute, and man, her articulate speaking brother, lo! he also is . . . mute.”²³ We see ourselves separate and beyond (and sometimes above) our own nature and the natural world. But collectively deciding that we need to limit ourselves, running against the flow of capitalism, against the unsatiable growth of the “civilized” world (yes, we do need another strip mall): that is humbling. We pull ourselves from our own pedestal, back on to the ground. Here, our legal world reflects our nature. Standing, on the other hand, imposes our legal lives onto our nature and the natural world. We take distinctly human concepts of retroactive fairness, of making one “whole,” on to a natural world that transcends such notions.²⁴

IV. The Problems with Nature

A. Our Nature

Perhaps this question should have been asked at the outset: why does nature need our protection now? If you have followed me thus far, I hopefully have shown why nature is worth protecting, and evaluated the different ways we might go about doing the protecting, but the question still lingers: what is it about nature that makes this protection difficult? Why must we wade into the semantic weeds, and argue for the preservation of natural spaces? After all, I did spend many a page discussing how we share the same Nature with natural spaces, should not this be oh so simple?

If only, dear Reader, if only. The problem is that we forget our shared Nature, and it is easy to do so, especially when we live in the world of legal fictions and systematic thinking. We spend our days not even in the clouds, but in the ethereal world of our related consciousness. Or, in more reasonable terms, in our heads. The vastness of the internal life of the brain, and the subsequent vastness of what can be created by use of our brain, be that video game worlds or symphonic compositions, allows us to feel as if we are separate from, and at times above, the world in which we inhabit.

The legal world does this better than most worlds. In law school we learn to see the world as a lawyer, not just to see the legal world as such, but to see the entire world through a legal lens. In other writings, I have referred to the law as a telescope: it can be used to see aspects of a landscape we would not have seen before, but if we live with one eye pressed to the lens and the other eye clamped firmly shut, we miss so much of the rest of the world.²⁵ When we think of the world solely in legal terms, we attempt to break down the world so precisely that we can make sense of and manipulate it. We are the hammers, and the world comprised of nails.

But “Nature does not like to be observed.”²⁶ Nature, of which we are, is too dynamic, too evanescent to break down into small pieces. Nature is too broad to view through a single lens.

But rather than grapple with this unknowability, we relegate nature and the natural world into concepts we can make sense of: standing, rights, ownership, etc. We would rather shave off the corners of the square block to fit into a circular hole than cut out a new hole. There is no impetus for such whole piece changes in thinking, such drastic adjustments, because we relegate the natural world to be separate from us, and as such, we relegate ourselves to separation as well. We attempt to build a fence around Nature, only to find we have trapped ourselves.

This is why we need to preserve natural spaces. We must hope, and I certainly do, that the inherent sameness with Nature can and will be illuminated by our time spent in natural places. What better way to feel the closeness with Nature than to be nestled among her roots, to be lifted upon her waves, to be sung to sleep by its wind. We may train our telescope on the hillside, on “that hill over there,” but when we walk upon its sod, it is no longer that hill, but our land, our world. Our only hope yet to recall this closeness, this sameness, is to sit with our childhood trees, to walk along the rivers, to sail on the waves, to climb the peaks. Natural space allows us to see past our artificial separation and remember the self-same power that brought us to the Rhodora in the first place.

B. Our Constitution

At the end of law school, I was asked to give parting remarks to my fellow third-year law school classmates as we received awards congratulating our achievements.²⁷ I began with a phrase my close friends and seminar-mates have likely come to detest: “The law doesn’t exist.” This is true, and not simply hyperbole, but what I mean by such wild words is that the law only represents how we humans have agreed to interact with each other. It only codifies our shared (or compromised) moral and ethical beliefs of fairness, freedom, justice, and welfare. There is no “Law” separate from our relations, no commandments carried down from the mountain top. Instead, we create the law, and we uphold it, but it is not a thing separate from us.

But, this does not mean that we should discount the law. In fact, it is the opposite. We need to own the law as our own. The law, whether written in the eighteenth century or the twenty-first, whether drafted by senators and lobbyist, or law clerks and practitioners, is ours. We created the law to help us, to help us govern ourselves, to protect those without the means to protect themselves, and to ensure the longevity of the nation contained within our drawn borders. But we cannot leave it on its own. Remember that even our Constitution begins with “We the People,” which is not solely a democratic signal, but a reminder that the Constitution is Ours.²⁸

So, when I push you, my Reader, to take hold of our law, this is what I mean: ask yourself whether the law continues to reflect the world, or have we let the law run amok, to excise itself beyond its prescribed limits, to take on a character of its own. Because the law has no character of its own, it is simply a tool. I find arguments that rely on the law as devoid of human involvement wholly disingenuous. Judges, for example, are no more umpires than caterpillars. We tend to use terms like stare decisis to support our arguments when it aligns, and turn our backs on such concepts when our goals are no longer supported by such Latin phrasing.

C. Our Problem

When we attempt to force our created world of the law onto the real world, we lose sight of the fact that the law (at best) is meant to represent and respond to the world, not the other way around. This is the heart of the problem with granting standing to nature: it takes a legal concept and forces Nature into it. It does not respond to nature, or the natural world, or even our relation to it: it tries to force it into the focus of our telescope, rather than us taking the time to adjust our angle. Because we are the ones creating the law, it is our duty to ensure that it responds to the world. It is our duty not to get swept up in our own creation, but to think carefully about how the law should be, how it should interact with nature, not what is easiest.

This is why we need to use negative action, in the form of constitutional amendments, to preserve natural spaces. Law, being of our own creation, and meant to govern our relationships, is perfectly suited to limit our own actions/abilities as humans. It does so all the time. We can prevent our own destruction of natural space by removing our ability to do so proactively, rather than give nature a retroactive, ineffectual right. It is wholly our problem, and we must use our tools to fix it, to ensure that our shared Nature informs our law, that we find a way to preserve natural spaces because of our shared Nature, not in spite of it.

V. Conclusion

If you have stuck with me to this point, dear Reader, you hopefully have a sense of my advocation: natural spaces deserve to be protected, but in a way that accommodates our relationship to nature, our shared nature, rather than imposes our created legal world onto nature. In other similar writings, I argue that economic approaches to preserving natural space, such as the theory of ecosystem services—attributing a numerical dollar amount to the benefits that nature can bring to humans—is also flawed, and I would posit that any legal response, including the standing arguments I deride in this piece, are better suited than economic ones. I believe it is important to do this sort of work, to focus on the how we preserve natural space, not just the preservation itself, because the longevity of the preservation can only be ensured if it is conceptually sound as well as effective.

This is why the standing argument falls short: giving rights to nature forces nature into a box we have created, with particular ends. But nature has no end, and any attempt to relegate it to an enclosed space, such as the law, ultimately misses the point entirely. Instead, we should use the law to do what the law does best, namely regulate ourselves. We should come to an agreement that the preservation of natural space is our duty, not because we are conscious beings, but despite it. Our consciousness too is natural, but not infallible, in the further removed from wild spaces we get, the harsher the boundaries we draw between us and the natural world, between us and nature. We need natural space to remind us of our shared nature.

I recognize that this is not the most pragmatic piece of writing. I spend most of my pages in heady concepts, not even defining exactly what sort of natural spaces we should protect, be those national parks or backyards. Nature is, of course, everywhere, as my drawings try to indicate. But when we are talking about preserving natural space, pragmatically, I do not attempt to draw those boundaries here. I advocate instead for a conceptual approach, a way of thinking about nature and the law that could, by my thinking, lay the groundwork for long term legal solutions to this continued problem.²⁹

What I hope to leave you with, dear Reader, if nothing else, is the recognition of our shared nature with the natural world, the recognition that the law is ours to own, and we should ensure that the law responds to our shared nature.

Cover Photo by Liam 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
U.S. Const. amend. I.
2
U.S. Const. amend. II.
3
U.S. Const. amend. VI.
4
U.S. Const. amend. XIV, § 1.
5
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
6
Stone, supra note 4.
7
Id.
8
405 U.S. 727, 745-47 (1972) (Douglas, J., dissenting).
9
Stone, supra note 4.
10
Sierra Club, 405 U.S. at 749-51.
11
947 F.3d 1159, 1171 (9th Cir. 2020).
12
Juliana v. United States, No. 15-cv-1517, 2017 U.S. Dist. LEXIS 89000, at *11 (D. Or. May 1, 2017). Recently, the Oregon District Court granted the plaintiffs in Juliana leave to file a second amended complaint, so long as they removed request of any specific remedy, and instead seek declaratory relief. This, of course, means the case is not dead on arrival, as before, but still shows the difficulty of the more broad, sweeping approach. It is hard to imagine what a declaratory judgment in this instance would result in, in terms of actual, pragmatic change. But perhaps there is hope yet, we shall see.
13
Id. at 1165
14
Federal Courts — Justiciability — Ninth Circuit Holds that Developing and Supervising Plan to Mitigate Anthropogenic Climate Change Would Exceed Remedial Powers of Article III Court, 134 HARV. L. REV. 1929, 1933 (2021).
15
Ohio Rev. Code § 2305.011(B).
16
See Wikipedia, Adirondack Mountains, https://en.wikipedia.org/wiki/Adirondack_Mountains (last visited May 5, 2022). I do find it comical that on the Wikipedia page for the “Adirondack Mountains,” “Human History” is listed above “Geology.
17
Everything is “roughly” when discussing years in the billions
18
N.Y. Const. art. XIV.
19
N.Y. Const. art. XIV, § 1.
20
True, it is much easier to change a state constitution than the federal one.
21
N.Y. Const. art. XIV, § 1
22
N.Y. Const. art. XIV, § 5.
23
Emerson, “The Method of Nature,” ¶29.
24
This too, if extrapolated, could indicate that the concept of “making whole” does not accommodate humans all that well, with our shared nature and all.
25
“[T]he lawyer is at his or her best when using the law as a telescope, pointed at the landscape of the real world, seeing the land itself. The telescope, made of metal and glass—themselves variations of stone and sand—is made of the world. It is not separate from, but itself a part of our reality. Just as the telescope sees the landscape in front of it, someone standing in the hills can see the telescope perched on the cliff. As it is with the law. The law emerges from our everyday, from the “common” and the “low,” and while it provides a certain type of lens to look at the world, there is no separation. Temperament, in this metaphor, is the stable tripod on which the telescope is perched. Held steady, the image is clearer.” Liam H. McMillin, A Letter to a Future Lawyer, (August 2021) (unpublished essay) (on file with author).
26
Emerson, “Experience,” ¶4.
27
“The Law Doesn’t Exist” — Liam McMillin
28
U.S. Const. pmbl.
29
I also have not discussed climate change in any direct way, although the parallels and pitfalls are clear: how else can we explain the continued destruction of our only world than by using the terms of this argument, where the particular ends of humans cloud our vision to an extent almost hard to comprehend. Much work, more so practically than conceptually, given the 11th hour, must be done in this area as well.