Could a constitution really protect the right to a sustainable future?
No, but it is probably a precondition. The American Constitution was not designed to protect
environmental rights or the rights of future generations to a sustainable environment.
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It was based
primarily on ‘freedom to’ do things, rather than ‘freedom from’ the actions of others that cause
environmental harm. Nor were democratic processes intended to protect the public from corporate
or bureaucratic interference in substantive democracy. It viewed private property and individualism,
not the commons and community, as the basis of liberty. Thus, the Constitution required the State
to do no harm with respect to the rights of citizens. It did not require the state or citizens to
do good
or protect the ecological base and public estate, human and ecosystem health, and so on. The State
could placate demands and resolve conflict in the short term by dividing up resources. Politicians
could enhance their position by giving away natural resources. So again, the common good or
public interest was left largely to individuals, charities and, later, not-for-profit organizations. It
is unlikely that environmental groups would ever be able to buy up all natural habitats to protect
ecosystems from unwise bureaucratic decisions or individual and corporate excesses. So although the
US Constitution was designed to prevent the abuse of power by the State through structural means,
it is clearly insufficient in today’s circumstances.
How do decision-making structures change despite good constitutions?
Constitutional provisions that restrain the accumulation of government power did not prevent
corporations from gaining undue influence over resource-allocation decisions. Corporations
could become a force for sustainability, but this is not likely when they operate above governments
(through, for example, the WTO). They are not subject to enforceable ethical precepts of relevance to
sustainability [Box 37]. In a supply-driven economy, consumer abstinence is a lot to ask for, whereas
consumer demand for environmental quality is not likely to be met. Many studies, over the last two
decades at least, document the transfer of public resources to private corporate interests at below cost.
For example, as Robert Repetto noted some 20 years ago, logging companies are clear-felling public
land at a net loss to the taxpayer. Sometimes timber has been auctioned off to logging companies
for less than the transaction costs of preparing for the auction. Moreover, the sale of timber does
not cover the cost of managing the forest. And the proceeds do not cover the replacement cost of
the resources (ie natural capital) – which businesses would ordinarily have to provide in the case
of manufacturing capital. This squandering of resources and expropriation still continues in many
countries through the active complicity of governments.
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Perhaps only a global system of eco-
governance can prevent current levels of resource expropriation.
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