This ruling seems obviously correct to me? The plaintiffs claimed this was a 14th amendment issue, but at the time the 14th was added cholera outbreaks were still somewhat common in the US and there was no remote notion of safe drinking water provided universally by municipal governments.
Hopefully there is some other legal redress under a different law or EPA regulation, but the courts can't just give in to faulty reasoning like that because people were wronged by the government.
That'd require them explaining why "the 14th Amendment predates germ theory" is a reasonable argument but not "the Second Amendment predates machine guns".
The second amendment is a pretty well articulated negative right in the same manner as the first or the fourth in the classical liberal school of thought. These are natural rights that individuals have and the bill of rights merely states that these are outside of the government’s sphere. The technology being used whether it be voicing your opinion on the internet, your house being secure from searches with thermal cameras without a warrant, or using modern firearms doesn’t alter the right or the government’s relationship to it.
The fourteenth amendment, specifically the due process clause at issue here, says that if the government exercises its power to deprive you of life, liberty, or property it must provide due process. In this case the government was not exercising such a power. It does not say that the government must provide clean water, in which case our understanding of what “clean” means would mirror the technological indifference of the aforementioned rights. Due process clause is just a really bad vehicle for this type of grievance.
That statement is false. Repeating firearms like the Puckle gun predate the bill of rights by ~75 years.
More importantly, the Founders were hardly unfamiliar with privately owned military firepower. The Constitution expressly authorized Congress to grant letters of marque, and the government commissioned privateers to attack enemy shipping using their cannon-armed privately-owned warships.
If you want to change an amendment do it the correct way, repeal it.
I know you're an idealogical zealot but, for anyone else reading.
I do find it interesting that the only laws I can find limiting the arming of private vessels were with respect to arming them and then sending them off to fight in foreign wars.[1]
[1] Neutrality Act of 1794, §§3–4, 1 Stat. 381, 383
That makes no sense. The 14th not covering clean water at the time it was written is not because they didn't have germ theory.
The comparison to the 2nd also makes no sense. First, machine guns come up in arguments about reducing the scope of the 2nd whereas the argument here is about expanding the scope of the 14th.
Second, the 2nd is a lot clearer than the 14th. Pretty much every concrete right we get out of the 14th is either something that is inferred from it being generally recognized as an unstated right by the time the 14th was passed or has been found by arguing that it is implicit in the other more explicit rights (e.g., right to privacy as something you have to have to make some of the more explicit rights meaningful).
> The 14th not covering clean water at the time it was written is not because they didn't have germ theory.
That was the legal theory upthread. Which I contest.
> Second, the 2nd is a lot clearer than the 14th.
"nor shall any State deprive any person of life, liberty, or property, without due process of law" seems pretty clear, and I'm inclined to consider "intentionally providing contaminated water" to be a violation of it.
Except the law clearly says "deprive" not "provide". You'll have to show how folks are being deprived of water if you want to argue this line of reasoning, "providing contaminated water" is not covered by this text, and has the trivial rebutal that no one is forced to accept said water, even if the alternative is a shit situation. That situation does not deprive them of life, liberty, or property, and so there is no constitutional violation.
Plus, you don't need the constitution to place lawful burner on parties, you just need laws that do not conflict with that constitution. Just because the 14th/2nd don't guarantee access to clean water does not mean they therefore guarantee no access to clean water. That is not how words work.
Government officials intentionally giving someone lead poisoning is depriving them of life.
I'm 100% fine with "there's no Constitutional requirement for a jurisdiction to provide a water supply" - plenty of folks live on well water. If you're going to provide one, though, you're responsible for it.
Similarly, my town is not required to provide internet access to its residents. If my town does decide to provide internet access to me (like Chattanoga TN), they can't censor my access and use of it, because of the First Amendment.
And none of these matter because the Constitution deals in principles not details.
"This guy was killed with a laser but the law against murder was written after clubs but predates lasers, so it doesn't apply and you can't call this a murder."
The ruling sounds correct to me but not because of anything to do with the date that any part of the constitution or ammendment was written.
Germ theory originated in Europe and it took a couple of decades before the knowledge transfer made it to the US and started getting accepted. It took a while for it to be come generally accepted in Europe too. I'm hazy on the exact dates, but even accepting the 1860 date, it's far too close to 1868 to assume politicians and the general public in the US (or even in Europe in 8 years) would have passed a constitutional amendment with full acceptance or understanding of germ theory.
It wouldn't have taken decades. Information might have taken a year or two. Decisions on what to do with that may take longer. I find it unlikely that germ theory wasn't known by those involved with the 14th amendment, even though it wasnt based on it.
Things taking a year or two was normal, but 8 years is plenty of time. There were long distance publications in many areas of the world even earlier in time. You can look at how every back in the 1700s Benjamin Franklin had a newspaper across the US and routinely corresponded with Europe.
So do you or do you not believe the First Amendment protects speech on this website? Or does it only protect quill pens and moveable type printing presses?
Machine guns are banned at the federal level, though, and it's been consistently upheld by the courts. I'm not sure I follow the argument anyway; the US constitution consists of negative rights (e.g. freedom to do something) rather than positive rights (e.g. entitlements)
> I'm not sure I follow the argument anyway; the US constitution consists of negative rights (e.g. freedom to do something) rather than positive rights (e.g. entitlements)
The limit on machine guns is unconstitutional and most of the argument against ignore the ninth amendment (e.g founding fathers couldn’t imagine a weapon past the musket, therefor any weapon made after 1776 is illegal)
I doubt the ninth amendment applies to entitlements, as these are fundamentally different from liberties
> Plaintiffs allege1 that the City, through a series of acts and failures to
act, caused lead to leach into Jackson’s drinking water. City officials then,
despite the presence of lead in the water, incorrectly told residents that the
water was safe to drink, despite knowing it likely was not.
This is the allegation. Doesn't sound much like "the constitution guarantees us safe drinking water," but rather "the constitution says our city government officials can't knowingly poison us and lie about it"
It seems nonsensical that the government could have the power to lie to and defraud the people while poisoning them. That just renders other rights meaningless.
sure, but that's not the 14th amendment. Maybe the guarantee clause. It MIGHT touch the 14th amendment via incorporation. That's not what the attorneys argued.
In the sense that the law is expansive... probably? But...
There is a federal law requiring government officials provide "honest services" (the searchable phrase to learn more). The supreme court ruled it was too vague to be constitutional and restricted its enforcement to outright bribery (more or less).
In the US, the executive branch can lie to you. Deception is a common law enforcement tool, as an example. The military / CIA actively use false news and propaganda. Unless an official is under oath, consider they might be intentionally deceiving you. (And even then...)
Dependence on "interpretation of the day" of the US Constitution seems to have overtaken regular maintenance of the law in a lot of high profile issues for the last many decades.
- the US law making process is fundamental and deeply broken to a point of it feels comparable to the Weimar Republic (the Germany between WW1 and Hitler taking over, around it's end it was pretty much dysfunctional when it comes to passing laws)
- instead things which should be law changes, and should be pursued bipartisan, are squeezed into other things. Like the budged bill, wider interpretations(1) of the existing law etc.
- or bundled into absurdly large bills covering docents of things which should not be one bill (which is very un-democratic and likely harmful for the US citizens. It allows corrupt politicians to forces less corrupt ones to vote for bad laws, because they are bundled with very essential needed changes, it also has shown to pose a very realistic risk of "sneaking" in something bad etc.)
- other cases often get stuck or even for topics which should be bipartisan held hostage to push some other goals
- with the current president this seems to have gotten even worse as he and the people close to him have attacked changes otherwise pursued by a wider bipartisan support. So even iff you can onboard both sides it might not mean enough in this legislation. But while I'm pretty sure I have seen such cases I can't remember details, so take with a grain of salt.
- to add in on top of all of that: Consumer and environmental protection in the US has always been a bit weak, a bit too slow, and often lacking precautionary approaches (most thing being reactive to enough people suffering harm, even if it was clear for a long time that idk. a product isn't safe or similar). And in some aspects this has been further crippled by the current administration, but idk. if such aspects apply here. That means even iff the current state is caused by a crime, it likely will take years to make stop the criminal from committing it. If it's seen as a breach of constitution things likely would move faster, and corrupt local governments have a much harder time undermining it.
---
(^1): Which isn't always bad, some degree of "vagueness" to handle the complexity of constant changing IRL is often desirable (as a dump example you also would make a law to forbid killing, instead of a law which explicitly lists and forbids every imaginable way you might kill someone). But what I mean goes far beyond that. In general some recognition of "basic human right" on a constitutional level should be something any citizen should ask their country to have. And I mean that independent of the international human rights court and the specific interpretation of human rights common with it. Not recognizing it is one thing, but insistently not recognizing any form of human rights is another, IMHO pretty evil, thing.
If there was documented, provable harm done to the residents from the lead poisoning (not saying there isn’t, I just don’t know), they could surely win a civil case claiming negligence by the city and/or water treatment facilities/etc… There may also be laws or regulations in Jackson or Mississippi that were broken. Perhaps there aren’t, but there maybe should be. Which are all points brought up by Engelhardt:
> The Constitution does not provide redress for every governmental wrongdoing. Rather, the remedy for Plaintiffs’ injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies. And Plaintiffs have not been left to go at it alone. The State of Mississippi and federal government have worked for years, and continue today, to improve the City of Jackson’s drinking water quality through regulations, investigations, and compliance plans. These already-established-and-undertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.
And now people who don’t take the time to actually read, or just can’t understand, are gonna be yelling and screaming about how the courts are corrupt, etc… (some courts may very well be corrupt! But this would not be a good example why).
> If there was documented, provable harm done to the residents from the lead poisoning (not saying there isn’t, I just don’t know), they could surely win a civil case claiming negligence by the city and/or water treatment facilities/etc
I would never understand this system. So to get repatriation on damage done a citizen has to mount an entire legal initiative. Even if the guilt is already proved. It just feels like a system where departments of government will only sue to fill their own budget next year.
> Surely knowingly letting people drink lead contaminated water breaks other laws rather than their constitutional rights?
The legality of poisoning people with toxic water in the US seems to depend upon how black they are (based on clear patterns of where this is allowed to happen).
The court ruling is here [1]. While this article is way better than the one from yesterday, it does have some big problems.
Better to just take a look at the ruling itself. Note that it contains two opinions. First is the majority opinion, joined be 10 judges on the 15 judge panel. Then is an opinion joined by 5 judges that dissents in part and concurs in part.
It's interesting how a lot of newer countries just put the right to water directly in the constitution. South Africa says some stuff about the government having an obligation toward "progressive realization" of the goal [1], whereas Slovenia just straight says water is a right [2].
The problem with the US is Americans treating their Constitution like some kind of Bible, untouchable and beyond reproach, when in reality it should have been a constantly evolving document.
South Africa has one of the best constitutions in the world on paper because the authors very recently had to reconcile with and forgo their apartheid past. And they had a number of templates to adapt from, including the US, France, Germany, India, etc. Older countries tend to have shittier constitutions.
The writers of the US constitution were well aware of how to enumerate positive rights, as they were common in the state constitutions, as well in many European countries' declarations of rights in restraint of monarchs. Many of them resisted this, especially James Madison, who called them mere parchment barriers and ineffective, even counterproductive. Madison's side mostly held sway, where the US constitution focused on the structure of government. The anti-federalists and other factions were the ones who pushed for enumerated positive rights, and they won only some concessions, like the Bill of Rights, which Madison and others worked to limit, such as phrasing some of them in negative terms.
You can disagree with Madison, but he certainly wasn't ignorant about these questions. He just felt positive rights were better secured through dynamic legislative processes within a stable and responsive democratic framework. The hard part is trying to maintain a responsive democracy. Without that positive rights are empty promises, anyhow, as they often are in these newer constitutions. One of the problems with making promises you can't keep is it delegitimizes government, which furthers the normalization of corruption and unlawfulness.
US has a lot of underground water, that is starting to run a bit low atm, but it's not like they are on desert world.
The reason there is no political will to ensure access to water in US, is because its good way to make money, and any legal guarantees as to quality/safety of the water would unreasonably lower investors' return
Constitutional right? No. But, it's an abject failure of the local government overseeing the infrastructure to fix or solicit help to fix. Jackson, MS government failed. Targeting them on the grounds of a constitutional violation seems like borderline legal malpractice, but probably an unfortunate standard time wasting legal protocol, for lawyers to suggest this was a viable route to begin with.
The article left off part of part of what the court said, which was (emphasis added):
> Rather, the remedy for Plaintiffs’ injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies.
Suing the government is indeed one of the things the court said they could do. They just can't sue alleging a violation of the particular federal statute they used in this suit.
At most that will just get it dismissed against some individual plaintiffs. It won't affect their case against the city and any companies such as the engineering firm that was a defendant in this particular lawsuit.
It'll come out of their taxes, which the city will either have to raise, or cut costs somewhere to pay for. The people responsible will be neither criminally nor civilly liable, leaving zero disincentive to others.
If the engineering firm is acting as an 'agent of the state' then the protections extend to them as well. Otherwise we wouldn't be able to protect private prisons, etc from being sued, and we can't have that happening in America. So the court invented a fake protection (qualified immunity), and then invented a fake protected class called 'agents of the state'.
Yes? Why would there be? This is a nation built on negative rights. If you pay taxes/fees to some institution for a service and the the institution fails to provide it, that's already covered by some contract law, no?
I know this will be read as me saying they shouldn't have clean water. What I'm saying is that declaring a positive right is not an effective approach to satisfying that right in this country, or anywhere that I'm aware. But especially this country. If I was in that jurisdiction I would be kind of insulted if this was presented as a reasonable approach to secure clean water.
I have a positive right to legal counsel, and trial by jury. We have, over the years, extended that to access to education and a wide variety of other items.
The Ninth Amendment exists in the Bill of Rights specifically to combat this misconception that the Constitution is an exhaustive list of the rights you possess.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Still sounds like negative framing to me. And when those implicit non-declared rights are judged legally, they are still judged in a negative rights lens, no?
The right to legal counsel and jury are protections are still defensive in framing, though I concede your point. Access to education I would also concede is partially positive though you see it is about not denying. I would also say the more recent positive-sounding rights declarations/rulings are not always on super solid grounds, but this is admittedly circular.
This is a double edged sword right? Allowing judges to interpret the “spirit of the law” more widely would create a different set of absurdities, I think.
I think it’s time for an amendment that says something like “public officials shall never mislead the public or issue materially false statements”. That would be a huge progress for the US.
And then entities litigate to have those laws overturned on highly abstract theoretical grounds, alleging that they violate the framers' intent in drafting the Constitution, or exceed enumerated powers or whatever.
> What ordinary law requires officials to issue truthful statements?
There are plenty of laws on the books against malfeasance in office. They go back to the freaking Code of Hammurabi. Proscriptions against "high crimes and misdemeanors" covers exactly this type of governance that willfully (or even negligently) brings harm.
Knowingly deceiving to the public in a way that causes them harm should be a no-brainer case for these laws. This judgment absolving the government is frankly an indictment of the judicial system.
While I agree with most of that, this judgement does not absolve the government of anything. As the judgement explicitly states, the plaintiffs do still have legal claims against their local government even though they do not have a Constitutional claim.
Never once tried to argue that it should be included in the Constitution. I suppose one of those "other laws" will cover when the government deliberately gives people lead poisoning? I wonder why they didn't go with that one...
You said it was absurd for the judge to rule it wasn't in the constitution, and advocated for a "spirit of the law" court. If that court's going to find any differently, don't they need to say it's part of the spirit of the constitution? That counts as including.
Correct. You may demand clean water from your local government, in return for taxes, but it isn't any sort of basic right. And certainly is not mentioned in the US Constitution.
Much like food or medical care: fundamental rights can never depend on the work of other people. Otherwise you can demand that work, which imposes on their rights.
Access to clean water may not be enshrined in the US constitution, but it’s not accurate to say it’s not “any sort of basic right.”
It’s enshrined explicitly as such in a variety of UN documents and EU laws and instruments.
I wish more of my fellow Americans had a better idea of what fundamental rights the US has chosen not integrate into domestic law over the past 8 or so decades.
I might be mistaken, but when an international treaty is ratified, it has the same weight as a constitutional amendment. I’m sure the US ratified something around those lines.
> fundamental rights can never depend on the work of other people
It is the government’s responsibility to ensure the people who provide those services are hired and paid. Nobody is demanding anyone to work for free or to be forced to work on something they don’t want.
At some point, we might get there and mechanisms to compel society to work enough so that society doesn’t collapse will be considered some sort of civic duty.
Something being a "right" doesn't mean it's a magical force that overrides all others. Rights are always in tension with other rights. A society deciding something is a "right" is a statement about priorities and values.
On the medical care example, most countries have something like the US's EMTALA -- not a Constitutional right but but a de facto "right to medical care" in emergency rooms and some other carve-outs.
But the fundamental right to medical care this codifies doesn't just override all other things. You'll get rightfully and legally-correctly turned away from an ER if you are extremely violent and belligerent, and cannot be reasonably stabilized enough for everyone else in the ER to be safe. If you're in a remote area and need a airlift, but the weather conditions are not reasonably safe for the only helicopter crew available -- as determined by themselves -- then they're not obligated to rescue you, either morally or legally.
Is 2nd amendment forcing anyone to make guns? Is US hiding population of enslaved workers that are forced to dig up metal, work it, make guns and sell them?
As a not American, why does freedom of speech include corporations giving money that are not citizens nor talking. But even that Congress has the power to spend "to provide for the common defence and general welfare" given by the constitution it still not a right to receive any of that.
I have a feeling that there is a interpretation bias in favor of corporations over human life.
It's the difference between a "negative" and a "positive" right. The former is something that government cannot do (compel or prohibit speech) whereas a positive right is something the government is obligated to provide (clean water).
Many people- most, in the early days- had private wells, and do not in any way "get" water from the government at all. It wouldn't make sense for such a thing to be in the Constitution. Even now, the water at my house comes from a well in my basement.
What happened could easily fit under fraud, false advertising or any number of other criminal or civil laws. That's why I'm deeply skeptical of this part of the judgement:
> He also said there was no constitutional right to “truthful information from officials during a public health crisis.”
While technically true, that does not mean the conduct itself was lawful, and I'd expect someone better versed in legalese could explain it.
PS: this case in particular relates to the city of Jackson, a municipal government, not the federal Congress, so the bit about "common defense and general welfare" is not binding to them. That would be the articles the municipality is incorporated under, as defined by the state of Mississippi, which apparently are too loose.
Because without protection of collective speech, there is no principled way to protect the freedom of the press.
The Citizens United case affirmed that a private group could collectively spend money to produce and distribute a movie attacking Hillary Clinton during her campaign.
The problem is, if you want to stop those people from spending money to influence the outcome of elections, you must also forbid the New York Times from doing so. That means no investigative journalism, no exposés of candidates, no endorsements or political op-eds. Ink and paper cost money, and that money is spent by a corporation.
(And, if you succeed in letting newspapers have a regulatory carve-out, then all you’ve done is make them tasty acquisition targets for those same corporate interests you just tried to restrict.)
I think unlimited spending on political messaging has poisoned our politics and our culture, but I think that’s downstream of a lot of other factors — the loss of social cohesion, weakening of civil society and institutions, and the growth of federal power raising the stakes of elections. Restricting speech won’t solve these issues. I’m not sure what will.
I think the first amendment quite reasonably protects people making donations to political causes. The "speech" protections aren't limited to literal vocalizations, but also applause, writing, displaying signs, etc. And it also protects assembly, and donating to a political organization is a reasonable part of joining or supporting a cause. It does not have to protect corporations making those same donations; congress could remove donations from the list of powers granted to a corporation, and there's an effort in some states to do just that (it'll be on the ballot this fall in Montana).
As for the second point, congress has that power, but not an obligation to do so. Congress could pass a law aimed at ensuring access to clean water, but not every law congress could pass has been passed. If congress passed such a law, a plain reading of that sentence would support the law being constitutional.
Not from US and not a lawyer, but for me it makes sense for 'speech' to include writing, signs, etc...
But not money. I think it should only include what every person has same of as every other person. We all can communicate, write, display signs,....
But not everyone can donate millions/billions
> In the majority decision, Judge Kurt Engelhardt wrote that while the deprivation of clean water was “grievous,” it did “not infringe upon any deeply rooted constitutional right.” “We are skeptical that the right to not be harmed by lead-contaminated water fits within the right to bodily integrity, and Plaintiffs point us to no historical tradition or Supreme Court precedent convincing us,” he wrote.
The Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It's the Fifth Circuit, so I'm not shocked they haven't heard of it.
I strongly suspect the Fifth Circuit would considered their bodily integrity to have been impinged upon if someone snuck lead into their drinks.
A lot of people also forget that the Bill of Rights is a list of thou shalt nots addressed to the government. In other words it doesn't just claim to not be a list of everyone's rights, it is structured and written to not be such a list.
I'm not sure why you think the Ninth Amendment is relevant here. It just establishes that there are rights not listed in the Constitution. It provides no help whatsoever in determine what those rights are.
If you want to know more on how that is done you want to look into "Substantive Due Process". There are a couple approaches that courts might use. One is looking to see if the alleged right is deeply rooted in history and tradition and implicit in the idea of ordered liberty. Another is the so-called "penumbras and emanations" test where they look at existing rights and infer some broader unlisted right that is needed to make the listed rights meaningful.
> It just establishes that there are rights not listed in the Constitution. It provides no help whatsoever in determine what those rights are.
The opinion is asserting a government intentionally allowing lead poisoning does "not infringe upon any deeply rooted constitutional right". That's an assertion that no such right exists.
> One is looking to see if the alleged right is deeply rooted in history and tradition and implicit in the idea of ordered liberty.
Hilariously, the "deeply rooted in history and tradition" test is, itself, not rooted in history and tradition. It was established in 2022!
At the risk of an analogy, this is like finding that the Linux kernel provides no guarantee that a process won’t contain buffer overflow vulnerabilities. While buffer overflows are bad, and it would be a good idea to try to prevent them, enforcing against them at the kernel level would be a far-reaching prospect with many consequences, intended and unintended.
The judge is opining that other layers of protection are available.
That sentence just says why we're making a national government (i.e. giving up some of our rights). It does not create some unlimited requirement for governments (especially state) to do whatever they can to promote general welfare, whatever that means. It doesn't even grant unlimited authority to do so. Or really say anything at all except state a very general purpose for why a national government is a sensible thing to have.
> We the People... in order to... [do establish] this Constitution
I disagree. The Preamble explicitly states that the Constitution is for these six things. "in Order to" makes it clear what the ends of the document are, and what they’re meant to serve.
That it doesn’t confer unlimited power is orthodox constitutional law. But the Preamble explicitly states the constitutional purposes that should guide the interpretation and exercise of the powers enumerated. And it doesn’t follow that the purposes it states are legally meaningless. The’re part of the constitutional text and inform how the powers actually conferred by the Constitution are construed. As Story commented:
“One of the best established rules of interpretation, one, which common sense and reason forbid us to overlook, is, that when the object of a power is clearly defined by its terms, or avowed in the context, it ought to be construed, so as to obtain the object, and not to defeat it. The circumstance, that so construed the power may be abused, is no answer. All powers may be abused; but are they then to be abridged by those, who are to administer them, or denied to have any operation? If the people frame a constitution, the rulers are to obey it. Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.”
> The Preamble explicitly states that the Constitution is for these six things.
The Constitution establishes the Federal government. Not state, county, city, municipal governments. It says what the Federal government is for. Not what those other levels of government are for. The Federal government isn't the government that failed to provide clean water in this case; it's not even responsible for providing city water in the first place, city governments are.
> The Fourteenth Amendment explicitly constrains states
It says states can't make laws that abridge the privileges or immunities of citizens. It does not say states have to provide whatever services citizens would like to have.
"nor shall any State deprive any person of life, liberty, or property, without due process of law"
One might argue they're not required to provide water, but I'd argue this means they can't knowingly provide dangerous water laced with a neurotoxin and lie about its safety as in this case.
(And there's an "equal protection of the laws" aspect to "lead in the water supply tends to disproportionately occur in poor communities", too.)
Give how vague constitutional clauses have been (ab)used to sneak in legislation through the judicial system (eg. roe v wade, or louisiana v. callais), the last thing we need are even more avenues to sue the government just because the plaintiff doesn't think the government is acting in the way they think is best.
The Preamble isn't vague about what it's doing, though. It's quite clear. It tells us who is establishing the Constitution and expressly states the purposes for which they are establishing it.
Saying that those stated purposes should inform constitutional interpretation isn't a particularly novel idea. Pretending the ratified language at the beginning of the Constitution doesn't matter because taking it seriously might be inconvenient isn't a serious position either.
The possibility that judges can abuse constitutional interpretation is an argument for doing it carefully, not selectively. Or, as Joseph Story put it: "The circumstance, that so construed the power may be abused, is no answer. All powers may be abused."
Can’t say that I follow. What does a king have to do with forming a more perfect Union, establishing Justice, insuring domestic Tranquility, providing for the common defense, promoting the general Welfare, and securing the Blessings of Liberty to ourselves and our posterity?
If you allow justifying government power according to some ambiguous notion of general welfare, then all you need to say is that something promotes general welfare. There is more to the structure of the US system than the preamble to the constitution.
You're conflating purpose with power. "Promote the general Welfare" doesn't create unlimited power. The power comes from the Constitution. The point is that once you are interpreting those powers, the Constitution's stated purposes are relevant to what they mean and how broadly they should be understood.
Nor was "general Welfare" some contentless phrase at the Founding. Protection, safety, prosperity, happiness, and the well being of the political community were all part of the contemporary vocabulary surrounding the public good. As Madison wrote in Federalist 45, “the public good, the real welfare of the great body of the people is the supreme object to be pursued”.
All government powers carry some risk of abuse. But, as Joseph Story put it, “Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.”
well first off, nobody asked for a constitutional right to clean water, what the court said was that not providing clean water did not violate rights to bodily integrity under due process.
Furthermore they said lying and saying the water was clean was fine because "there was no constitutional right to “truthful information from officials during a public health crisis.”"
which is a stupid statement because everybody knows there is no such constitutional right, the question would be if not giving truthful information during a health crisis could violate some constitutional right.
I would have dug to see if they told somebody with money and power, hey don't drink that water because then that would violate equal protections (or at least that's what I would argue), but since nobody went there maybe it's not quite as sure a proposition as I would suppose.
US residents are only allowed to buy and drink brawndo (TM), for safe and clean consumption, they can even use it to irrigate the crops because it has electrolytes!!
> the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. § 1983 for refusing to enforce a restraining order, even though the refusal led to the murders of a woman's three children by her estranged husband
If that court had ruled differently, people would absolutely be using that precedent to sue towns and police departments for not delivering illegal immigrants who came to the attention of the police department to ICE for deportation, if that illegal immigrant later killed someone.
That would actually make sense. It’s the police’s job to “serve and protect” and, if there was a likelihood a person would commit a crime and, knowing that, the police refused to act to prevent harm to the population, the police force should be held accountable for that.
are you kidding me? It's right in the preamble "promote the general welfare" if clean water does not count, then neither should all the other BS they've argued into existence over that phrase should either.
Hard to see where we go from here as a society where arbitrary laws that bind us all are essentially written on the fly by whatever judges happen to be in the Supreme Court, circuit courts, state courts, etc.
How is it possible to have a democracy under these conditions?
> How is it possible to have a democracy under these conditions?
You’d need more luck than what seems to be available. Since one side is blatantly criminal and the other is somehow less criminal, electing successive governments from the less criminal side would be the best possible course.
Hopefully there is some other legal redress under a different law or EPA regulation, but the courts can't just give in to faulty reasoning like that because people were wronged by the government.
The fourteenth amendment, specifically the due process clause at issue here, says that if the government exercises its power to deprive you of life, liberty, or property it must provide due process. In this case the government was not exercising such a power. It does not say that the government must provide clean water, in which case our understanding of what “clean” means would mirror the technological indifference of the aforementioned rights. Due process clause is just a really bad vehicle for this type of grievance.
That statement is false. Repeating firearms like the Puckle gun predate the bill of rights by ~75 years.
More importantly, the Founders were hardly unfamiliar with privately owned military firepower. The Constitution expressly authorized Congress to grant letters of marque, and the government commissioned privateers to attack enemy shipping using their cannon-armed privately-owned warships.
If you want to change an amendment do it the correct way, repeal it.
So Congress had a certain level of... control? Over guns?
I do find it interesting that the only laws I can find limiting the arming of private vessels were with respect to arming them and then sending them off to fight in foreign wars.[1]
[1] Neutrality Act of 1794, §§3–4, 1 Stat. 381, 383
(With a few strictly controlled exceptions; https://www.skiutah.com/blog/authors/lexi/last-gunners-the-c...)
The comparison to the 2nd also makes no sense. First, machine guns come up in arguments about reducing the scope of the 2nd whereas the argument here is about expanding the scope of the 14th.
Second, the 2nd is a lot clearer than the 14th. Pretty much every concrete right we get out of the 14th is either something that is inferred from it being generally recognized as an unstated right by the time the 14th was passed or has been found by arguing that it is implicit in the other more explicit rights (e.g., right to privacy as something you have to have to make some of the more explicit rights meaningful).
That was the legal theory upthread. Which I contest.
> Second, the 2nd is a lot clearer than the 14th.
"nor shall any State deprive any person of life, liberty, or property, without due process of law" seems pretty clear, and I'm inclined to consider "intentionally providing contaminated water" to be a violation of it.
Plus, you don't need the constitution to place lawful burner on parties, you just need laws that do not conflict with that constitution. Just because the 14th/2nd don't guarantee access to clean water does not mean they therefore guarantee no access to clean water. That is not how words work.
I'm 100% fine with "there's no Constitutional requirement for a jurisdiction to provide a water supply" - plenty of folks live on well water. If you're going to provide one, though, you're responsible for it.
Similarly, my town is not required to provide internet access to its residents. If my town does decide to provide internet access to me (like Chattanoga TN), they can't censor my access and use of it, because of the First Amendment.
The 2nd does not predate machine guns.
The 1st does predate the internet.
And none of these matter because the Constitution deals in principles not details.
"This guy was killed with a laser but the law against murder was written after clubs but predates lasers, so it doesn't apply and you can't call this a murder."
The ruling sounds correct to me but not because of anything to do with the date that any part of the constitution or ammendment was written.
Germ Theory starting -only- 8 years prior doesn't really mean much here...
Oh wait, https://en.wikipedia.org/wiki/Contemporary_reaction_to_Ignaz...
From the government, yes. From @dang, no.
Similarly, I think it's a clear Constitutional violation for a city government to knowingly give people lead poisoning.
Semiautomatics, if you prefer. (And plenty of Second Amendment purists feel that limit is unconstitutional, and SCOTUS may well soon agree. As they just did with silencers - https://www.npr.org/2026/08/17/nx-s1-5935562/firearms-law-la...)
> I'm not sure I follow the argument anyway; the US constitution consists of negative rights (e.g. freedom to do something) rather than positive rights (e.g. entitlements)
That's what the Ninth Amendment is for.
I doubt the ninth amendment applies to entitlements, as these are fundamentally different from liberties
If so, the argument upthread about "well cholera" fails for similar reasons.
> I doubt the ninth amendment applies to entitlements, as these are fundamentally different from liberties
The Ninth Amendment doesn't use either term. Just rights. (Which I am, *ahem*, entitled to.)
This is the allegation. Doesn't sound much like "the constitution guarantees us safe drinking water," but rather "the constitution says our city government officials can't knowingly poison us and lie about it"
Surely knowingly letting people drink lead contaminated water breaks other laws rather than their constitutional rights?
Surely intentional lead poisoning counts?
There is a federal law requiring government officials provide "honest services" (the searchable phrase to learn more). The supreme court ruled it was too vague to be constitutional and restricted its enforcement to outright bribery (more or less).
In the US, the executive branch can lie to you. Deception is a common law enforcement tool, as an example. The military / CIA actively use false news and propaganda. Unless an official is under oath, consider they might be intentionally deceiving you. (And even then...)
- the US law making process is fundamental and deeply broken to a point of it feels comparable to the Weimar Republic (the Germany between WW1 and Hitler taking over, around it's end it was pretty much dysfunctional when it comes to passing laws)
- instead things which should be law changes, and should be pursued bipartisan, are squeezed into other things. Like the budged bill, wider interpretations(1) of the existing law etc.
- or bundled into absurdly large bills covering docents of things which should not be one bill (which is very un-democratic and likely harmful for the US citizens. It allows corrupt politicians to forces less corrupt ones to vote for bad laws, because they are bundled with very essential needed changes, it also has shown to pose a very realistic risk of "sneaking" in something bad etc.)
- other cases often get stuck or even for topics which should be bipartisan held hostage to push some other goals
- with the current president this seems to have gotten even worse as he and the people close to him have attacked changes otherwise pursued by a wider bipartisan support. So even iff you can onboard both sides it might not mean enough in this legislation. But while I'm pretty sure I have seen such cases I can't remember details, so take with a grain of salt.
- to add in on top of all of that: Consumer and environmental protection in the US has always been a bit weak, a bit too slow, and often lacking precautionary approaches (most thing being reactive to enough people suffering harm, even if it was clear for a long time that idk. a product isn't safe or similar). And in some aspects this has been further crippled by the current administration, but idk. if such aspects apply here. That means even iff the current state is caused by a crime, it likely will take years to make stop the criminal from committing it. If it's seen as a breach of constitution things likely would move faster, and corrupt local governments have a much harder time undermining it.
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(^1): Which isn't always bad, some degree of "vagueness" to handle the complexity of constant changing IRL is often desirable (as a dump example you also would make a law to forbid killing, instead of a law which explicitly lists and forbids every imaginable way you might kill someone). But what I mean goes far beyond that. In general some recognition of "basic human right" on a constitutional level should be something any citizen should ask their country to have. And I mean that independent of the international human rights court and the specific interpretation of human rights common with it. Not recognizing it is one thing, but insistently not recognizing any form of human rights is another, IMHO pretty evil, thing.
> The Constitution does not provide redress for every governmental wrongdoing. Rather, the remedy for Plaintiffs’ injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies. And Plaintiffs have not been left to go at it alone. The State of Mississippi and federal government have worked for years, and continue today, to improve the City of Jackson’s drinking water quality through regulations, investigations, and compliance plans. These already-established-and-undertaken avenues are the proper course for rectifying the lead contamination. We will not expand the Fourteenth Amendment to create novel theories of constitutional liability.
And now people who don’t take the time to actually read, or just can’t understand, are gonna be yelling and screaming about how the courts are corrupt, etc… (some courts may very well be corrupt! But this would not be a good example why).
I would never understand this system. So to get repatriation on damage done a citizen has to mount an entire legal initiative. Even if the guilt is already proved. It just feels like a system where departments of government will only sue to fill their own budget next year.
The legality of poisoning people with toxic water in the US seems to depend upon how black they are (based on clear patterns of where this is allowed to happen).
Better to just take a look at the ruling itself. Note that it contains two opinions. First is the majority opinion, joined be 10 judges on the 15 judge panel. Then is an opinion joined by 5 judges that dissents in part and concurs in part.
[1] https://www.ca5.uscourts.gov/opinions/pub/24/24-60370-CV1.pd...
[1]: https://www.gov.za/documents/constitution/chapter-2-bill-rig...
[2]: https://www.uradni-list.si/glasilo-uradni-list-rs/vsebina/12...
South Africa has one of the best constitutions in the world on paper because the authors very recently had to reconcile with and forgo their apartheid past. And they had a number of templates to adapt from, including the US, France, Germany, India, etc. Older countries tend to have shittier constitutions.
You can disagree with Madison, but he certainly wasn't ignorant about these questions. He just felt positive rights were better secured through dynamic legislative processes within a stable and responsive democratic framework. The hard part is trying to maintain a responsive democracy. Without that positive rights are empty promises, anyhow, as they often are in these newer constitutions. One of the problems with making promises you can't keep is it delegitimizes government, which furthers the normalization of corruption and unlawfulness.
I am not sure how "right to water" would work in arid parts of the US. You cannot legally demand what physically is not there.
But you can demand what is provided to you by public utility isn't knowingly and secretly poisoned with a neurotoxin.
Is suing the government not essentially a petition for remedies? How else do you get the gov to listen?
> Rather, the remedy for Plaintiffs’ injuries lies in pursuing tort claims, electing representatives who will better manage the public-water system, and petitioning their representatives for other remedies.
Suing the government is indeed one of the things the court said they could do. They just can't sue alleging a violation of the particular federal statute they used in this suit.
Which certainly won't get thrown out over qualified immunity.
(And if they win a case against the city, it's coming out of their own pockets!)
Which again, if they win, they pay for!
It'll come out of their taxes, which the city will either have to raise, or cut costs somewhere to pay for. The people responsible will be neither criminally nor civilly liable, leaving zero disincentive to others.
The polite answer to that is JFK's line, “Those who make peaceful revolution impossible will make violent revolution inevitable."
I know this will be read as me saying they shouldn't have clean water. What I'm saying is that declaring a positive right is not an effective approach to satisfying that right in this country, or anywhere that I'm aware. But especially this country. If I was in that jurisdiction I would be kind of insulted if this was presented as a reasonable approach to secure clean water.
I have a positive right to legal counsel, and trial by jury. We have, over the years, extended that to access to education and a wide variety of other items.
The Ninth Amendment exists in the Bill of Rights specifically to combat this misconception that the Constitution is an exhaustive list of the rights you possess.
Still sounds like negative framing to me. And when those implicit non-declared rights are judged legally, they are still judged in a negative rights lens, no?
The right to legal counsel and jury are protections are still defensive in framing, though I concede your point. Access to education I would also concede is partially positive though you see it is about not denying. I would also say the more recent positive-sounding rights declarations/rulings are not always on super solid grounds, but this is admittedly circular.
I stand by my claim of "built on".
We should have "spirit of the law" courts. This is absurd.
Yeah, kinda genuinely terrifying to think about that timeline. That's how you get George Orwell's worst nightmares come true.
I don’t think any of the branches have adequate restraints at this point.
There are plenty of laws on the books against malfeasance in office. They go back to the freaking Code of Hammurabi. Proscriptions against "high crimes and misdemeanors" covers exactly this type of governance that willfully (or even negligently) brings harm.
Knowingly deceiving to the public in a way that causes them harm should be a no-brainer case for these laws. This judgment absolving the government is frankly an indictment of the judicial system.
Much like food or medical care: fundamental rights can never depend on the work of other people. Otherwise you can demand that work, which imposes on their rights.
It’s enshrined explicitly as such in a variety of UN documents and EU laws and instruments.
I wish more of my fellow Americans had a better idea of what fundamental rights the US has chosen not integrate into domestic law over the past 8 or so decades.
It is the government’s responsibility to ensure the people who provide those services are hired and paid. Nobody is demanding anyone to work for free or to be forced to work on something they don’t want.
At some point, we might get there and mechanisms to compel society to work enough so that society doesn’t collapse will be considered some sort of civic duty.
So public defenders and public school teachers aren't a thing? Jury duty can't be compelled? Conscription like in WWII?
Something being a "right" doesn't mean it's a magical force that overrides all others. Rights are always in tension with other rights. A society deciding something is a "right" is a statement about priorities and values.
On the medical care example, most countries have something like the US's EMTALA -- not a Constitutional right but but a de facto "right to medical care" in emergency rooms and some other carve-outs.
But the fundamental right to medical care this codifies doesn't just override all other things. You'll get rightfully and legally-correctly turned away from an ER if you are extremely violent and belligerent, and cannot be reasonably stabilized enough for everyone else in the ER to be safe. If you're in a remote area and need a airlift, but the weather conditions are not reasonably safe for the only helicopter crew available -- as determined by themselves -- then they're not obligated to rescue you, either morally or legally.
Is 2nd amendment forcing anyone to make guns? Is US hiding population of enslaved workers that are forced to dig up metal, work it, make guns and sell them?
The most cruel part is that a lot of people work on things that result in no meaningful benefit for society.
I have a feeling that there is a interpretation bias in favor of corporations over human life.
Many people- most, in the early days- had private wells, and do not in any way "get" water from the government at all. It wouldn't make sense for such a thing to be in the Constitution. Even now, the water at my house comes from a well in my basement.
What happened could easily fit under fraud, false advertising or any number of other criminal or civil laws. That's why I'm deeply skeptical of this part of the judgement:
> He also said there was no constitutional right to “truthful information from officials during a public health crisis.”
While technically true, that does not mean the conduct itself was lawful, and I'd expect someone better versed in legalese could explain it.
PS: this case in particular relates to the city of Jackson, a municipal government, not the federal Congress, so the bit about "common defense and general welfare" is not binding to them. That would be the articles the municipality is incorporated under, as defined by the state of Mississippi, which apparently are too loose.
The Citizens United case affirmed that a private group could collectively spend money to produce and distribute a movie attacking Hillary Clinton during her campaign.
The problem is, if you want to stop those people from spending money to influence the outcome of elections, you must also forbid the New York Times from doing so. That means no investigative journalism, no exposés of candidates, no endorsements or political op-eds. Ink and paper cost money, and that money is spent by a corporation.
(And, if you succeed in letting newspapers have a regulatory carve-out, then all you’ve done is make them tasty acquisition targets for those same corporate interests you just tried to restrict.)
I think unlimited spending on political messaging has poisoned our politics and our culture, but I think that’s downstream of a lot of other factors — the loss of social cohesion, weakening of civil society and institutions, and the growth of federal power raising the stakes of elections. Restricting speech won’t solve these issues. I’m not sure what will.
As for the second point, congress has that power, but not an obligation to do so. Congress could pass a law aimed at ensuring access to clean water, but not every law congress could pass has been passed. If congress passed such a law, a plain reading of that sentence would support the law being constitutional.
There are reasons to be optimistic.
The Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
It's the Fifth Circuit, so I'm not shocked they haven't heard of it.
I strongly suspect the Fifth Circuit would considered their bodily integrity to have been impinged upon if someone snuck lead into their drinks.
If you want to know more on how that is done you want to look into "Substantive Due Process". There are a couple approaches that courts might use. One is looking to see if the alleged right is deeply rooted in history and tradition and implicit in the idea of ordered liberty. Another is the so-called "penumbras and emanations" test where they look at existing rights and infer some broader unlisted right that is needed to make the listed rights meaningful.
The opinion is asserting a government intentionally allowing lead poisoning does "not infringe upon any deeply rooted constitutional right". That's an assertion that no such right exists.
> One is looking to see if the alleged right is deeply rooted in history and tradition and implicit in the idea of ordered liberty.
Hilariously, the "deeply rooted in history and tradition" test is, itself, not rooted in history and tradition. It was established in 2022!
The judge is opining that other layers of protection are available.
> We the People... in order to... [do establish] this Constitution
That it doesn’t confer unlimited power is orthodox constitutional law. But the Preamble explicitly states the constitutional purposes that should guide the interpretation and exercise of the powers enumerated. And it doesn’t follow that the purposes it states are legally meaningless. The’re part of the constitutional text and inform how the powers actually conferred by the Constitution are construed. As Story commented:
“One of the best established rules of interpretation, one, which common sense and reason forbid us to overlook, is, that when the object of a power is clearly defined by its terms, or avowed in the context, it ought to be construed, so as to obtain the object, and not to defeat it. The circumstance, that so construed the power may be abused, is no answer. All powers may be abused; but are they then to be abridged by those, who are to administer them, or denied to have any operation? If the people frame a constitution, the rulers are to obey it. Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.”
The Constitution establishes the Federal government. Not state, county, city, municipal governments. It says what the Federal government is for. Not what those other levels of government are for. The Federal government isn't the government that failed to provide clean water in this case; it's not even responsible for providing city water in the first place, city governments are.
This is about a hundred years out of date.
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
It says states can't make laws that abridge the privileges or immunities of citizens. It does not say states have to provide whatever services citizens would like to have.
"nor shall any State deprive any person of life, liberty, or property, without due process of law"
One might argue they're not required to provide water, but I'd argue this means they can't knowingly provide dangerous water laced with a neurotoxin and lie about its safety as in this case.
(And there's an "equal protection of the laws" aspect to "lead in the water supply tends to disproportionately occur in poor communities", too.)
Saying that those stated purposes should inform constitutional interpretation isn't a particularly novel idea. Pretending the ratified language at the beginning of the Constitution doesn't matter because taking it seriously might be inconvenient isn't a serious position either.
The possibility that judges can abuse constitutional interpretation is an argument for doing it carefully, not selectively. Or, as Joseph Story put it: "The circumstance, that so construed the power may be abused, is no answer. All powers may be abused."
Nor was "general Welfare" some contentless phrase at the Founding. Protection, safety, prosperity, happiness, and the well being of the political community were all part of the contemporary vocabulary surrounding the public good. As Madison wrote in Federalist 45, “the public good, the real welfare of the great body of the people is the supreme object to be pursued”.
All government powers carry some risk of abuse. But, as Joseph Story put it, “Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.”
Furthermore they said lying and saying the water was clean was fine because "there was no constitutional right to “truthful information from officials during a public health crisis.”"
which is a stupid statement because everybody knows there is no such constitutional right, the question would be if not giving truthful information during a health crisis could violate some constitutional right.
I would have dug to see if they told somebody with money and power, hey don't drink that water because then that would violate equal protections (or at least that's what I would argue), but since nobody went there maybe it's not quite as sure a proposition as I would suppose.
https://en.wikipedia.org/wiki/Town_of_Castle_Rock_v._Gonzale...
> the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. § 1983 for refusing to enforce a restraining order, even though the refusal led to the murders of a woman's three children by her estranged husband
It's clear at this point that judges pick the outcome they want then find ways to interpret the case, precedent, etc. to fit. You can see it in the dissent here. https://www.ca5.uscourts.gov/opinions/pub/24/24-60370-CV1.pd...
Hard to see where we go from here as a society where arbitrary laws that bind us all are essentially written on the fly by whatever judges happen to be in the Supreme Court, circuit courts, state courts, etc.
How is it possible to have a democracy under these conditions?
You’d need more luck than what seems to be available. Since one side is blatantly criminal and the other is somehow less criminal, electing successive governments from the less criminal side would be the best possible course.