The Constitution and Our Debt to the Future

Abstract

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found in Article I, section 8. The Commerce Clause has the important deficit of focusing on commercial transactions between two entities now in existence, while next generation laws must focus on the preservation of natural resources for us by future generations not now in existence. Steinzor argues that the Supreme Court has long recognized a state “police power” to protect public health and preserve the general welfare outside the constricting context of commercial transactions. The Court could and should read an analogous federal police power into the General Welfare clause given global threats such as climate change. She locates her proposal in work on the concept of an affirmative constitution by Professor Robin West, among others.

Keywords: Commerce Clause, General Welfare Clause