“The earth, the air, the land and the water are not an inheritance from our forefathers but on loan from our children.” ~Mahatma Gandhi
In April of 2024, India incorporated the “right to a healthy environment” within two Articles of their Constitution: Article 21 (the fundamental right to life and personal liberty) and Article 14 (the fundamental right to equality). Despite over a decade-long crusade to incorporate this right into the U.S. Constitution, the youth and future generations of our nation are still denied their fundamental right to a healthy environment. Below is a suggested framework for the Supreme Court to incorporate the fundamental right to a healthy environment, including the right to a life-sustaining climate, into the U.S. Constitution.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” – Preamble, U.S. Constitution
The Preamble’s potential to incorporate equal protection of fundamental rights and expand the understanding of other constitutional principles has largely been untapped and shut down by the judiciary. Yet, it holds the key to protecting the rights of future generations, and with judicial due diligence and care, it can unlock and be used to invoke the spirit of the Constitution.
A. Background: The Perpetuity Principle, Jefferson, and the Federal Atrocity
The appellate reversal of Juliana v. United States dismissed both the case and the fundamental right to a life-sustaining climate that Judge Aiken had established in the Lower District Court. Judge Staton’s dissent to the appellate reversal introduces the “Perpetuity Principle” while advocating for the recognition of this fundamental right: “The perpetuity principle is not an environmental right at all, and it does not task the courts with determining the optimal level of environmental regulation; rather, it prohibits only the willful dissolution of the Republic.”
Staton challenges the majority for avoiding complex challenges and hiding behind a political questions doctrine by asserting that the “perpetuity principle [may not] be rejected simply because the Court has not yet had the occasion to enforce it as a limitation on government conduct.” She argues that the Perpetuity Principle is deeply embedded in the Constitution and its Preamble and should serve as a fundamental constraint on government actions. Her dissent is grounded in a robust historical context that illustrates a vision of the Constitution as a living document intended to endure across generations, suggesting an implicit duty to protect the environment for future generations. Yet, Staton’s dissent does not delve into a framers’ most detailed vision for safeguarding future generations’ right to enjoy the earth and its resources, which are merely on loan to the current generation—their usufruct right. “Usufruct” is defined in civil law as “the right of enjoying a thing, the property of which is vested in another, and to draw from the same all the profit, utility and advantage which it may produce, provided it be without altering the substance of the thing.”
“[T]hat the earth belongs in usufruct to the living . . . Then no man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the payment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be the reverse of our principle.” ~ Thomas Jefferson, Letter to James Madison (Sept. 6, 1789)
In his 1789 letter to James Madison, Thomas Jefferson championed the rights of future generations, emphasizing that each generation should not burden its successors with debts or environmental harm. Jefferson said that the earth belongs to the living and that no generation has the right to deplete resources or incur debts that jeopardize the rights of future generations. If Jefferson’s letter were considered by the Court today, his assertion that “the earth belongs to the living generation” might be misconstrued as rejecting the legal basis for recognizing Posterity rights—inherent rights by the Preamble—under laws created by the living. Jefferson himself noted that “no society can make a perpetual constitution or even a perpetual law” and advocated for a continuous, full reassessment of important decisions made during the architectural debates by each generation rather than adjusting the existing framework through repeal. He believed that each generation must have the power to reconsider and reshape foundational decisions because relying solely on their ability to repeal laws isn’t enough to protect society from the short-term interests of any single generation.
It must be remembered that Jefferson’s proposition came from a time when women, people of color, and non-landowning men were excluded from democracy, which restricted every framer’s conceptual ability to mother a continuum of generations across time. Recognizing the fundamental right to a healthy environment, therefore, does not signify a wholesale reconsideration of the Constitution but rather fulfills its foundational purpose of justice and equity for Posterity. To Jefferson, this right could represent a living acknowledgment of each generation’s evolving duty to protect both natural and societal inheritances for those that follow. Our Posterity’s chance of survival depends on allowing this nation’s beautiful variety of women and youth the opportunity to confront the government—to be heard in a court of law—and advocate for the health and sovereignty of future generations. This includes demanding the protection of their fundamental usufructuary rights and holding violators accountable.
Context matters. Jefferson’s generation—the male architects of our nation—stamped in time an evolving set of philosophies on natural rights, equal protection, and economic principles. The framers directly addressed “the Posterity” by entrusting them (and us) with the power to amend the governmental defects established during the Constitutional Convention “rather than push the experiment too far.” Jefferson’s letter underscores the framers’ reliance on Posterity to adapt and modernize their decisions affecting such delicate balances, which initially served as placeholders of conjecture.
Change and adaptation were at the heart of the framers’ vision for the generational care of the Nation. They saw it as a spoken covenant, passed down and prepared for each new generation, acknowledging that an evolving society must have the time and opportunity to learn, perform, shed, and reflect. The climate atrocity law and self-serving interests we face today are simply evolved incarnations of our founding fathers’ fears. Since Marbury v. Madison, the Court has learned to define its power and, on occasion, has irresponsibly wielded this power to create atrocity law. Atrocity law occurs when the judiciary engages in pretend legal reasoning and/or facts that perpetuate the violation of fundamental rights of specific classes. Blatant examples include Plessy v. Ferguson, which deemed the enslavement of black people constitutional during the agriculture era, and Korematsu v. United States, which endorsed systemic injustice by granting executive discretion for the internment of Japanese-Americans. To this day, the judiciary discriminates against women through legal reasoning that disregards the obligation of faithful and impartial application of the law. This is also the case with the youth and future generations fighting for climate and environmental justice. If the Supreme Court rules on a case praying for recognition of the fundamental right to a life-sustaining climate, it does so amidst a federal atrocity-law approach to the climate emergency.
Redressing these challenges requires remembering that we, too, are the Posterity and are free from preceding constitutional views that have either been proven invalid or systemically denied the opportunity for validation through atrocity law. Our capacity to evolve law is both core to the Constitution and to the meaning in Jefferson’s notion that the earth belongs always to the living generation. Ruled by unstoppable time and a federal commitment to national unity, the Perpetuity Principle transcends legal terms, becoming a constitutional form that shapes the survival of our nation’s kin—an active torch meticulously crafted, carried, and passed by generations.
B. Framework: Constitutional Incorporation under the Due Process Right to Property
It may seem counterintuitive to isolate the fundamental right to a life-sustaining climate (also discussed as a survival right) as a property right rather than that of life or liberty. However, the legal relationship we share with “our Posterity” goes beyond equal sovereignty and into foundational principles of property law.
A core concept in property law is that “property” itself is a legal construct comprising rights over tangible and intangible things rather than the things themselves. Property rights are often discussed as a divisible bundle, including the right to exclude, transfer, possess, use, and destroy. The modern right to destroy is not absolute; private owners may not destroy their property if it is of substantial value, which invokes the waste doctrine. In declaring the fundamental right to a life-sustaining climate, the Court must ask whether a national climatic balance is of substantial value to the Posterity’s usufructuary. Although the government’s duty to act in the public interest may override the duty to avoid damaging property value, there is but little room for arguments trying to justify waste and further climate disruption in the name of the public interest, as such actions would harm the health and welfare of our Posterity.
Justice Oliver Wendell Holmes was distinguished by his clear delineations between morality and law. Even he found morality as an inseparable part of his analysis of the legal construct of “possession”—particularly that of adverse possession—advocating for its application in the pursuit of “justice.” In The Common Law, Justice Holmes examines what constitutes a property right, starting with the distinction between possession as a “fact” or a “right.” His analysis suggests that defining a climate system as “property” requires demonstrating both a fundamental right to possess it and an intent to exclude others from its control. Incorporating the fundamental right to a life-sustaining climate would thus involve considering whether government actions, such as environmental regulations and international agreements, imply control and exclusivity in managing the nation’s climate system, suggesting ownership. However, Holmes requires “something more” to establish this fully and explores the moment of gaining possession while emphasizing various types of possessory relations.
“I should argue that in justice to that other he was bound at his peril[.]” ~ Oliver Wendell Holmes, The Path of the Law (1897)
Jefferson’s letter to Madison supports applying a usufructuary relationship for determining our Posterity’s fundamental right to a life-sustaining climate. “Usufruct” is already defined above. Furthermore, “in perpetuity” is a legal term of art indicating the future interest of property transferred from a grantor (us) to a grantee (our Posterity)—fully vested in fee simple absolute with no condition precedent other than the natural termination of the prior possessory estate in the grantee for their lifetime. Thus, the usufructuary relationship is a possessive ownership of limited duration, with the usufruct always being the property of the successor, here being “our Posterity.” Every generation is both grantee and grantor of the usufructuary for a lifetime.
Simply stated, future generations are fully dependent on our efforts to curb greenhouse gas emissions today. Therefore, I suggest protecting our Posterity’s fundamental right to a life-sustaining climate using property law by treating the continued promotion of dangerous atmospheric pollutants and the “willful dissolution of the republic,” as premised in Staton’s dissent, as illegal destruction and impermissible wasting of the usufructuary. The Hawai‘i Supreme Court supports this framework, affirming that “[A parties’] interest in its right to a clean and healthful environment, as defined by laws relating to environmental quality, is a property interest protected by due process.”
An End Note: Wielding the “Key to the Constitution”
In 1969, Justice Brennan’s decision in Goldberg v. Kelly marked a pivotal moment in the judicial Due Process Revolution. He cited the Preamble—a rare move for the Supreme Court—to assert that public financial assistance “is not mere charity” but a means of achieving the “Nation’s basic commitment to foster dignity and well-being of all persons within its borders” and thus could not be terminated without a hearing. However, Brennan’s narrow interpretation of the Preamble’s general Welfare clause limited its application to financial assistance. This interpretation was shaped by the “law is efficiency” hypothesis of legal scholars at the time, such as Richard Posner and Robert Bork, who promoted an “equal gratification” analysis. This perspective treated social institutions as tools to maximize individual preferences and increase the economic pie rather than deciding how it should be fairly divided. It was later used by Justice Powell in Matthews v. Eldridge to justify ending disability benefits without a hearing. To protect future generations, a broader, historical understanding of the Preamble’s scope—encompassing health, happiness, and prosperity—should be applied to establish a fundamental right to a healthy environment.
Our Posterity cannot afford the luxury of a wavering legal system that fails to provide appropriate boundaries to narrow interpretations while also confusing its place on the scales of a capitalistic balance, as occurred in the Due Process Revolution. Establishing a fundamental right to a life-sustaining climate would be both a form of correction by acknowledging past harms and a way to move forward with solutions to the current climate crisis amidst the wreckage of the industrial era. More importantly, it embodies a commitment to each generation’s role as trusted stewards of our shared home.
The framework discussed integrates this fundamental right into law by establishing it under the Preamble’s Posterity clause while relying on the Constitution’s body for specific protections. This method prevents opportunistic misuse of the right while emphasizing national perpetuity and due process protections. Environmental law can get entangled in complex political debates, but our Nation’s core principles of freedom and individual rights rise above political discourse and are rather straightforward: future generations have an undeniable fundamental right to a healthy environment. “We cannot eat money.”
The author, Sophia Tidler, is a 3rd year law student at the University of Hawai’i William S. Richardson School of Law and an Alaska-licensed professional engineer (P.E.).