A New Constitutive Commitment to Water

Boston College Journal of Law and Social Justice, vol. 36, p. 159 (2016)

Suffolk University Law School Research Paper No. 15-37

77 Pages Posted: 6 Oct 2015 Last revised: 28 Aug 2016

Sharmila Murthy

Suffolk University Law School

Date Written: August 26, 2016

Abstract

Cass Sunstein coined the term “constitutive commitment” to refer to an idea that falls short of a constitutional right but that has attained near-constitutional significance. This Article argues that access to safe and affordable water for drinking, hygiene, and sanitation has attained this status and that national legislation is needed to realize this new constitutive commitment. Following the termination of water to thousands of households in Detroit, residents and community organizations filed an adversary complaint in Detroit’s bankruptcy proceedings seeking a six-month moratorium on the disconnections. The bankruptcy court dismissed the case, accurately finding that “there is no constitutional or fundamental right either to affordable water service or to an affordable payment plan for account arrearages.” The widespread protests and outrage at the Detroit water shutoffs suggest, however, that people perceive access to water as a right. Although affordable access to water for essential needs falls short of a constitutional right, it could implicate substantive due process, which reflects its near constitutional status. An analysis of American history, culture, and law demonstrates how access to water for drinking, hygiene, and sanitation could be protected under the right to life. This Article argues that legislation is needed to implement a new constitutive commitment to water and proposes numerous policy options that would not only make moral and economic sense, but also would ensure that all Americans have affordable access to safe water for drinking, hygiene, and sanitation.

Note: (The bankruptcy court’s ruling was affirmed by the U.S. District Court for the Eastern District of Michigan on September 16, 2015. This article will soon be updated accordingly.)

Keywords: water, Detroit, shutoff, due process

Suggested Citation

Murthy, Sharmila, A New Constitutive Commitment to Water (August 26, 2016). Boston College Journal of Law and Social Justice, vol. 36, p. 159 (2016); Suffolk University Law School Research Paper No. 15-37. Available at SSRN: https://ssrn.com/abstract=2669380

Sharmila Murthy (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

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