- Constitutions and Future Generations
A Double-Edged Sword
Any attempt at thoroughly exploring issues of green constitutionalism requires a close look at the interactions between constitutions and our concern for justice towards future generations. It is crucial to understand at the outset that, far from a convergence, there is a fundamental tension at work between two types of concerns for future generations as they translate at the constitutional level. On the one hand, by incorporating substantive and/or procedural guarantees in the constitution, one may well aim at reinforcing the protection of the coming generations against actions of generations preceding them and deemed problematic. Yet, on the other hand, the more we rely on constitutions—as opposed to less rigid legal instruments—the more we threaten the generational sovereignty of future generations. Taking seriously the renewal in theories of justice as well as the development of environmentalism in the 1970s and 1980s, one may be tempted to assume that constitutions can only serve future generations. Yet, exactly two centuries earlier, in the late 1780s and early 1790s, the concern of authors such as Jefferson (1789) and Paine (1791) was just the opposite.1 Constitutions can thus constitute double-edged swords from the perspective of intergenerational justice. The tools used in a constitution to offer even stronger guarantees to the rights of future people simultaneously restrict the sovereignty of coming generations. Constitutionalization is thus not straightforwardly compatible with the demands of intergenerational justice.
Let me be more specific. Constitutions, through a variety of amendment restrictions (e.g. requiring a prior declaration of revisability by the previous parliamentary assembly before the elections, requiring special quorums, sometimes going as far as non-revisability),2 reduce the freedom of each generation to adopt its own rules on a simple majority basis. In the face of this prima facie case against constitutional rigidity, there are at least three questions to be addressed. First, do constitutions actually bind future generations at all?3 If a country were claiming to apply its laws to the citizens of other countries residing outside its territory and on grounds that don't benefit from any special degree of recognition elsewhere, other countries would simply dismiss such claims. Why can't a generation simply do the same and decide to enact a new constitution from scratch?4 Second, if it makes sense to claim that constitutions actually bind future generations, are there good reasons for that weighing heavier than the concern for generational sovereignty expressed above? Third, if it can be fair to bind the next generations, on which issues can or should this be done—e.g. on all issues that we generally consider as constitutional essentials? Hereinafter, we will only address the second of these three issues.
Before doing so, consider the other side of the debate—the idea of relying on constitutions to protect future generations. This takes various forms. First, one may want to translate substantive concerns for future generations in constitutions. Some constitutions actually refer to the interests of future generations and sometimes even explicitly grant them rights, such as in the case of the Japanese constitution, which extends some of the rights already granted to present people to future ones (1946, art. 11), and with a more specifically environmental focus in the Norwegian (1992 amendment, art. L110b) and the Bolivian ones (2002 amendment, art. 7(m)).5 Recognizing rights to future people raises specific challenges, including constraints on how to phrase them. Yet, these challenges are not insurmountable.6 What matters however is how flesh is given to such rights. We will explore below one way of doing so - through setting up a representative for future generations, with a properly defined mandate.7
Can Constitutional Rigidity be Justified?
A people always preserves the right to revise, reform and change its constitution. A generation is not entitled to subject future generations to its own laws.8
Thomas Jefferson is probably the most emblematic author among those who emphasized the fact that constitutional rigidity—which should not be confused with unrevisability—raises a problem of intergenerational fairness.9 He essentially relies on three intertwined lines of argument. First, "the dead have no rights...