No constitutional right to clean water, federal court finds
usatoday.com
usatoday.com
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.
Germ Theory starting -only- 8 years prior doesn't really mean much here...
We've had vaccination/innoculation for centuries and people still don't accept it.
> To his credit, Dr. Lister crossed the Atlantic to deliver a lecture to a hostile American audience to try and convince them of his methods in 1876.
> Our own Jake Wynn argues that it wasn’t until the death of President Garfield in 1881 that the American public and physicians began to turn toward germ theory. His slow and painful descent from an assassination attempt was well documented and publicized at the time.
There is a difference between information transmission and it getting absorbed into the public opinion and understanding so much that a constitutional amendment would consider it. To go from Joseph Lister’s and Louis Pasteur’s work in the 1860s and think that politicians and the general voting public in the US passing a constitutional amendment that considers it in a handful of years just doesn’t make much sense.
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.)
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 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.
Also, doesn't the Preamble to the US Constitution say it was established by the People with, among others, the goal to "promote the general Welfare" of the people? How is the general welfare promoted by the government deliberately holding information on what they know is going to severely damage their welfare?
The preamble isn't a source of any substantive power.
On the second, why did they write it then? Just because they felt like it, while fully knowing it to be meaningless?
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.
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.
One way we do that is by banding together with our neighbors to form cities or other municipalities that tax us and use the proceeds to build safe water systems. If we elect untrustworthy or incompetent people to run those water systems then we have no one to blame but ourselves. If a city doesn’t have a law requiring the administrators of the water system to speak truthfully to the public then that is the people’s fault, not the government’s fault.
Honestly though I bet we’ll find that the administrators have technically been telling the truth. We have federal standards for things like water safety that are used to regulate water providers (which are not always public entities, mind you). Those standards do tell us how much lead in the water is acceptable and how much is unsafe, but those are two different numbers. The acceptable level is well below the threshold of safety. When this eventually gets to a trial in front of a jury I bet the administrators will argue that they were perfectly correct; that the water was safe because the levels of contaminates, although elevated, were below harmful levels.
The plaintiffs also complain about repeated boil–water notices, but that may not help their case. Any time you dig up a water pipe to repair or replace it then people using that water will need to boil it. Those notices are themselves proof that the utility was doing maintenance and repair work (presumably with the goal of fixing the problem), not proof of incompetence.
I’m not sure I’d want to be on that jury.
It does promise the government can't take it from you without due process.
That seems like a novel one.
If you want safe drinking water you have to provide it yourself. Either dig your own well, or band together with your neighbors to have municipal water. Or buy drinking water from a private company; lots of people in the US do that. Europeans are frequently shocked to learn this, but ironically private water companies have a better track record for safety than municipal water systems. We are, after all, talking about a contamination case involving a municipal water system rather than a private one.
If you dig your own well then you are responsible for ensuring that it remains safe. Regular testing and maintenance is entirely your responsibility. Of course you are allowed to delegate to a contractor, but ultimately the responsibility rests entirely on your shoulders.
If you subscribe to a municipal water system then the responsibility rests on the municipality. You will be electing someone to run the water system. Choose wisely. Your vote has actual physical safety consequences for you and your children. Furthermore you may want to write local ordinances that govern the behavior of this type of elected officials. You might want to be able to rely on them making truthful statements, for example. If so then you should put that in writing in your municipal ordinances. Many states and cities have already done just that! Off hand I don’t know if Mississippi or the city of Jackson have.
Similarly we also have laws and ordinances against the government poisoning people. It is usually illegal, in most jurisdictions, in most circumstances. We also have laws against negligence that leads to harms such as poisoning people.
Just because something isn’t in the Constitution doesn’t mean it’s legal. In this case people seem to have heard that safe drinking water isn’t guaranteed in the Constitution and jumped to the ridiculous conclusion that the government can poison people whenever it wants with no consequences.
The Constitution, and especially the Bill of Rights and other amendments, is mostly a list of things that the government is not allowed to take away from the people or other parts of the government. It’s not a list of all desirable things that the people want governments to do.
This is patently false.
https://pmc.ncbi.nlm.nih.gov/articles/PMC11069331/
> Oh no, they can end your life too. But only after due process.
Yes, that's the point. There was not any sort of due process here.
> If you want safe drinking water you have to provide it yourself. Either dig your own well, or band together with your neighbors to have municipal water.
This was municipal water.
> If you subscribe to a municipal water system then the responsibility rests on the municipality.
And this ruling is letting them escape the responsibility.
And do you not understand the process? The plaintiff brings a lawsuit arguing that the defendant did a bad thing. They make multiple claims about laws that were broken. The judge may throw out any or all of those claims. Most lawsuits lose at least one. In this case one of the claims was that the municipal water district violated their 14th amendment rights. That one got thrown out. The plaintiffs appealed and the this is their appeal being denied.
I haven’t actually read the original lawsuit, but there’s no way that they were dumb enough to make only that one claim against the water district. They’ll still have their claims about negligence and so on and so forth. It’ll go to trial eventually, or the district will settle. Losing this claim does not let the district escape their responsibility.
* in the course of a court case, a judge (or multiple judges from multiple courts) are asked to make many different decisions on many different legal issues; most of those don't end or determine the outcome of the overall case
* indeed, some of the decisions are about minor issues and others are about major issues
* some of the issues presented in a case may be "questions of first impression" where no court has ever addressed them before; these are potentially very important as a matter of precedent because they might affect how similar questions are viewed in other cases
* other issues may be very longstanding or familiar ones
* lawyers may be willing to bring cases with different degrees of novelty (e.g. relying entirely on an untested theory, or not!), and with different likelihoods of success
* legal standards will often have many different elements, and one party may lose under a standard even though it met most of the elements (but not all of them)
All of these are more complex from the natural impulse to say "hooray, the court made a decision in favor of the people I think are the good guys!" or "boo, the court made a decision in favor of the people I think are the bad guys!".
> That was the legal theory upthread. Which I contest.
Who argued that?
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?
- 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.
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).
Surely intentional lead poisoning counts?
> 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.
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...)
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.
There will probably be no more amendments in the foreseeable future, possibly ever. The US does the exact opposite of what you said - they don't amend, they reinterpret. All the schools of thought that enable creative interpretations for twisting ancient, outdated writing into what you want it to say are because of that. For all intents and purposes, the US constitution is seen as unchangeable.
And I don’t see why you think no future evolution can happen. The process for amending the Constitution hasn’t changed any. It remains as easy or as hard as it ever was.
But I suppose you are right that we often have activist judges who think that it is their job to reinterpret the words of the Constitution. There are quite a few bad rulings that have resulted from that. But the ideal is that we don’t reinterpret the words. It is a human failing that we sometimes succumb to the temptation.
Why would you expect that, when societal change historically accelerates over time?
> The process for amending the Constitution hasn’t changed any.
In the sense that walking to work didn't change when people moved to the suburbs.
Jefferson wrote on this: https://founders.archives.gov/documents/Madison/01-12-02-024...
"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. But persons & property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course, with those who gave them being. This could preserve that being till it ceased to be itself, & no longer. Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right. It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly & without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal."
There isn't really any reason to suppose that the USA should be so very different.
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?
The polite answer to that is JFK's line, “Those who make peaceful revolution impossible will make violent revolution inevitable."
> 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.
We should have "spirit of the law" courts. This is absurd.
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.
I don’t think any of the branches have adequate restraints at this point.
Yeah, kinda genuinely terrifying to think about that timeline. That's how you get George Orwell's worst nightmares come true.
The Constitution declares only your right to persue and defend your needs, not to provide them to you.
Sure, many bad wrongs were done by people who are guilty of any number of crimes or failures to perform duties in good faith or failures of integrity. They just aren't Constitutional issues.
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".
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
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 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.
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.
Which won't happen until it has an adult president, but that's a different story.
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.
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.
So public defenders and public school teachers aren't a thing? Jury duty can't be compelled? Conscription like in WWII?
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.
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.)
Oh, come on.
This is tortured logic that would argue the Fourth Amendment doesn't apply to most police departments in the country and that town school boards could violate the First Amendment and have religious instruction.
States are co-sovereigns with the Feds. Your city is not. Your city's state cannot allow the local jurisdictions under it violate the Constitution either. Your town can't forbid black people from voting for mayor. etc. etc. etc.
For a concrete example:
https://supreme.justia.com/cases/federal/us/390/474/
> Held: Local units with general governmental powers over an entire geographic area may not, consistently with the Equal Protection Clause of the Fourteenth Amendment, be apportioned among single member districts of substantially unequal population.
> The Equal Protection Clause reaches the exercise of state power, whether exercised by the State or a political subdivision.
Not at all. The Fourth Amendment does not specify any specific level of government. It gives general requirements that apply to all levels of government.
The Fourteenth Amendment explicitly says "States". That makes a difference--or it should. Someone else upthread pointed out that the Supreme Court in Yick Wo applied it to a city municipal ordinance, so as usual, the explicit language has been ignored and the actual de facto interpretation is indeed broader.
> and that town school boards could violate the First Amendment and have religious instruction.
The First Amendment explicitly says that Congress shall make no law...and the reason for that was that, at the time, most States had established religions and they didn't want the Federal government messing with that. And yes, those States ran religious schools to indoctrinate children in their established religions.
Over time, as all those State established religions went away and as a country we became much more secular, the de facto interpretation of the First Amendment has changed, so that we now expect that local governments can't, for example, run religious schools. But any such claim would have been dismissed as nonsense by the original Framers of the amendment.
> For a concrete example
Yes, I'm aware that the Supreme Court routinely imposes its own interpretation on what the Constitution says, whether it makes sense or is consistent with the actual language or not. The one you cite was fairly mild compared to, say, Hampton Co. v. United States, or Wickard v. Filburn, or Kelo v. New London.
The Fourteenth Amendment constrains state and local government action. And the Preamble's "general Welfare" is relevant interpretive context. At the Founding, that meant the safety, prosperity, happiness, and well being of the political community.
So the question isn't whether the Constitution requires cities to provide water, but whether a city that allegedly poisons people through the water system it operates can violate constitutionally protected interests in life, liberty, or bodily integrity.
As the court's opinion points out (and as others have pointed out in this thread), there are plenty of other legal remedies that can be sought against a city government that allegedly poisons its people through its water system, including voting them out of office and bringing tort claims against them.
And "you can vote them out or sue in tort" doesn't answer the constitutional question. The availability of other remedies does not make an otherwise unconstitutional government action constitutional.
Also, the Fourteenth Amendment does considerably more than prohibit abridging privileges or immunities. It expressly prohibits states from depriving any person of life, liberty, or property without due process and from denying equal protection.
That case was about a city ordinance (true, a city ordinance, not a State law that the city was enforcing, so that much is a fair point) that was inequitably enforced (non-Chinese got permits, Chinese didn't, with no other material facts being different). It was not the city providing a service itself.
> It expressly prohibits states from depriving any person of life, liberty, or property without due process
This refers to civil suits or criminal prosecutions, not the government providing services.
This is about a hundred years out of date.
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R...
The Bill of Rights is just the first ten. Incorporation has been extended far further than that. Per the link:
"However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time."
> The Constitution did not establish those other governments.
But it does constrain them. They agreed to that when they ratified the Constitution and joined the United States.
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."
You realize much of the constitution is designed to constrain what the government can do, exactly to limit the potential for abuse? Sure, it's all great when you're using the "promote the general welfare" as an excuse to enact medicare for all or whatever, not so great when the other side decides it means abortion needs to be banned (what about the "welfare" of babies).
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.”
The OP is about a federal ruling saying clean water is not a constitutional right, no? And if you're disagreeing you're saying it should be a positive federal right in interpretation if not declaration, implying power of enforcement.
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.
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.
I have a feeling that there is a interpretation bias in favor of corporations over human life.
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 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.
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.
If one person acting alone has a right to speak, how can that same right be denied to a group who have decided to speak together? And since “speech” in this context has always been interpreted to mean any act by which a message is conveyed to other people, it naturally includes applause, sitting quietly, donating money, etc, etc.
Corporations are not people nor behave like individuals. Money is not speech.
> “speech” in this context has always been interpreted to mean any act by which a message is conveyed to other people
Like a bullet? That explains the high murder rate in the USA. Your argument makes no sense and only works if one does not think too much about it.
> has always been interpreted
Saying that it has always been like that does not make it so. Because it was not.
It has always been agreed by everybody that corporations do not have a right to free speech only individual citizens have it.