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Stopping a Dangerous Article V Convention

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Now is Not the Time to Rewrite the U.S. Constitution

Guest commentary by Justin Pidot, professor of law and the co-director of the Environmental Law Program at the University of Arizona James E. Rogers College of Law

 

In this politically fractured time, some state legislatures have called for a convention to rewrite the U.S. Constitution. Article V of the Constitution provides for such a process, but a convention has never before been convened and, and if it occurred, would have no set rules, no predictable outcome. Yet plausible changes, consistent with the passionate views held by a few, could produce catastrophic results for the environment. Here I consider three.

First, what if the Commerce Clause only allowed regulation of the transportation and sale of goods across state lines? Such is the view that Justice Thomas has expressed in dissenting opinions about our current Constitution. Implementing it would radically diminish Congress’s power, and environmental law would be among the causalities, because protecting air, water, soils, and species cannot be accomplished through mere product regulation.

States could not fill the vacuum left by constrained federal power. They could continue to regulate within their boundaries, but environmental problems often cross jurisdictions. Indeed, disputes over transboundary pollution pre-dated modern environmental law by decades. In 1907, Georgia sued a Tennessee copper company, because toxic fumes caused injuries in five counties. Federal common law provided redress then, and the Clean Air Act does so now.

Second, what if the Fifth Amendment’s Takings Clause required compensation whenever regulation depresses property value? Such a rule is the dream of many libertarians, who argue that it would lead to efficient regulation. Its implications could be even more dramatic than rewriting the Commerce Clause. Virtually every environmental law requires economic actors to spend money to address the harms they cause, and those costs can often be described in terms of depressing the value of regulated businesses. The cost to the federal treasury of enforcing just one environmental law could result in bankruptcy, if every regulated entity could claim compensation.

Rewriting the Takings Clause would likely extend beyond the federal government, because its provisions apply to state and local governments too. We know the likely result, because a few states have experimented with expansive compensation regimes. When Oregon did so, first the state virtually abandoned application of its growth management law, because it could not afford to pay, and then the people voted to abandon the regime. Moreover, this rule would have deeply regressive consequences; wealthy communities might have the funds available to purchase environmental protection, but poorer communities will not.

Third, what if the Property Clause did not allow the United States to retain ownership of public lands? Such is the view of many sagebrush rebels, who believe that public lands should be privatized or turned over to states. Yet America is defined, at least in part, by the national parks, wildlife refuges, monuments, that are the birthright of every American. Our public lands should be for all of us. Yellowstone and Yosemite should not be sold to the highest bidder, destined for use only by the wealthiest among us.

The Constitution has been the foundation of our Democracy for more than two hundred years, serving us in times times of prosperity and crisis. It has been amended from time to time to better serve our nation’s founding principles of liberty, equality, and justice for all. But it has never been subjected to wholesale revision through a convention. Doing so now is wildly risky and wholly unnecessary and, if a convention were to occur, environmental law would be just one among many potential casualties.

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