Some proponents of intergenerational rights, not wishing to challenge this construction of the 14th Amendment, are content to suggest that the grounds for intergenerational rights be located in other constitutional sources. f283 But such a broad application of the Roe opinion seems premature and unwarranted. The intergenerational right at issue in Roe was essentially individual in nature; it was the right of individual conceived fetuses to proceed to birth. The intergenerational rights which would predominantly be at issue under the proposed Stewardship doctrine are more public in nature. Whether such public rights were considered by the framers of the Civil War amendments, and whether they are logical extensions of the equal protection principle even if not so considered, are questions which were not argued in Roe, and which the court did not have reason to reach. f284
The framers of the 14th Amendment did not anywhere set out a list of all the groups they intended to protect from discrimination; they just articulated a general principle. Had they been polled, they probably could not have reached an agreement to extend that principle to protect women from discrimination, or Jews, or persons born out of wedlock, or non-human 'persons' such as corporations. But the principle of equal protection has been extended to all those groups, with the understanding that the architects of emancipation could be expected to understand, best of all people, the need for an evolving concept of justice.
This is not to suggest that 14th Amendment jurisprudence can or should be divorced entirely from original intent. In fact, an original intent analysis justifies protection of future generations much more readily than it justifies judicial review on behalf of many other groups currently protected as suspect classes. f285 Because the 1789 constitution explicitly named posterity as a class to be protected, it is reasonable to assume that the framers of 1868 could have anticipated that their own principles would be applied to protect that class. Because the framers of emancipation were demonstrably aware of, and shocked by, the peculiarly intergenerational dimensions of slavery's injustice, it is reasonable to assume that they could foresee their principle of egalitarianism serving to prevent other types of intergenerational injustice. If and when these points are argued to the Supreme Court, the court can be expected to distinguish the public, collective rights of unborn generations from the private rights of unborn individuals, and to fashion a different analysis and holding for a different set of circumstances.
That holding should indicate that when one generation pursues conduct (individually or collectively) which
unfairly infringes on the collective interests of later generations, that conduct should be actionable as a
violation of future citizens' 14th Amendment right to equal protection of the law.
end to date.