Rationality must be the cornerstone of that standard: else the standard will fall into the morass of moral, religious, ethical decision-making that the Supreme Court rejected in Roe v. Wade. In Roe the Court, finding that the State had a "compelling interest" in the life of a fetus, recognized the State’s duty to protect posterity. At the same time the Court insisted upon a rational basis for deciding the balance between that posterity interest of the State and the privacy interests of the potential mother. In determining that they must reject moral, ethical and religious standards for determining the point at which the posterity interests outweigh the privacy interest, the Court also gave good guidance for determining the boundaries of other expressions of the State’s duty to posterity.
An argument could be made that cutting publicly owned ancient forests would deprive posterity of a precious asset, and would therefore be an unreasonable act. This could be countered with the assertion that wealth is created by conversion of natural resources into commodities, and that blanket restrictions upon access to resources are not only foolish, but would serve to destroy both today’s society and any potential for the Government to take actions that are beneficial to posterity. The debate between these two positions would undoubtedly be couched in rational terms, but would ultimately come down to intuitive or value laden positions, no sharp lines between the interests of posterity and the interests of the present would become apparent in this debate for decades. In fact this is exactly what has happened: for many decades a debate has raged between advocates and opponents of logging proposals, the debate has been pursued by both sides in "rational" terms. No consensus is in sight, and in spite of the rational veneer, the positions of the debaters rely heavily upon values and moral judgments.
Recently, however, new developments have revealed a truly rational point at which to draw a sharp line between the interests of today and tomorrow. Logging activity has become so extensive as to endanger the very existence of a number of plant and animal species, and thus threaten the fragile balance of forest ecosystems.
Up to the point of species extinction there is no answer to the argument that logging creates wealth, that wealth will pass on to posterity, and posterity may if it so chooses expend that wealth on restoration efforts: thus logging is neutral or beneficial to posterity. A line is crossed when components of the forest system are threatened by logging, once this line is in sight the value laden debate about the impacts ends and a sharp line appears. If our activities lead to the extinction of species, no amount of wealth, technology, education, or good will can put the system right. Once species are lost, posterity is harmed in a real, unalterable, and irrevocable way. Once the realistic possibility of species loss becomes the probable result of Federal action, the line between the interests of ourselves and our posterity has been crossed. If Federal action leads to the endangerment of species, another line has been crossed; the line between Constitutional and unconstitutional action.
Consider an analogy: Assume that you have a trust fund of $100 principal value, and that you have inherited this fund with instructions to pass it on to posterity, and to take no action that would prevent the fund from existing in perpetuity.
Now consider the same situation, save that the pool of species now living on the earth is substituted for the $100 fund. Your obligation is the same; to pass on the entire principal amount of the biological pool. Should you decide that any one species is expendable, you have either asserted that your rights are superior to the rights of posterity, or that the biological pool may be, in a finite number of generations, expended. Note that judgments as to the value of any particular species have no part in this analysis: the loss of any species, no matter how irrelevant it seems in your estimation, will create a real harm to the perpetual right of posterity to inherit whatever rights that you have to the biological pool.
In the same way that the trust fund analogy is complicated, but not invalidated, by refinements to account for interest and inflation, the biological pool argument is complicated, but not invalidated, by evolution and natural extinctions. Unlike the financial argument, however, the biological pool argument is only slightly affected by these refinements. Since the natural rate of extinction of existing species and evolution of new species is small compared to the current level of human caused extinction, refinement of the argument to include natural changes in the size of the biological pool would only serve to extend the date at which the "principal balance" in this account hits zero.
This interpretation of the Preamble does not require that no harm be done to posterity, only that posterity be protected from impacts that can be rationally determined to be both adverse and not balanced by other benefits. The threshold for such determination must, if moral, religious, or ethical arguments are to be rejected, be quite high. Perhaps only deliberate, significant and irreversible impacts to the integrity of the infrastructure of life on earth pass the threshold for consideration as unconstitutional harm to posterity.
<<Home <<Page 1 <<Page 2 <<Page 3
See Cites to Case Law and Journal articles relating to the Preamble for items relevant to the argument that the Federal Government must consider impacts on posterity:
Constitutional
Law Foundation, 50 West 36th Street, Eugene, Oregon 97405
Phone: 541-683-4500, Fax: 541-683-4492, clf@conlaw.org