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Tomorrow’s Standing Today: How the


Equitable Jurisdiction Clause of Article
III, Section 2 Confers Standing Upon
Future Generations
by John Edward Davidson*

Introduction: Treating Posterity Like Dirt .......................... 188


I. Overview: The Stewardship Doctrine and the Call for
Posterity Standing................................................................. 190
II. Equitable Standing ............................................................... 197
A. “Arising . . . in Equity” .................................................. 197
B. Equity’s Application to Cases Involving
Legal Incompetents ....................................................... 199
C. Equity’s Application to Cases Involving
Unforeseen Circumstances ........................................... 201
D. Equity’s Application to Cases Where Injunctive
Relief is Sought to Prevent Irreparable
Constitutional Harm...................................................... 203
E. Equity’s Application to Class Actions............................ 205
F. Equity’s Application to Trusts and Cases
Alleging Waste ............................................................... 206
III. Objections and Responses.................................................... 210
A. Are Future Persons Unreal? .......................................... 210
B. Cases, Controversies, Political Questions, and
Injury-in-Fact .................................................................. 214
1. Injury-In-Fact ............................................................ 214
2. Posterity and Justice Scalia....................................... 215
3. Posterity Considered as an Unrepresented
Majority..................................................................... 217

* B.A. University of Wisconsin (1985), J.D. University of Oregon (1992). Professor of


Constitutional Law, Pioneer Pacific College. Senior Research Fellow, Constitutional Law
Foundation (CLF). The author extends his deepest appreciation to CLF, without whose
encouragement and financial support this article would not have been possible. Contact:
jdavidson@conlaw.org, 50 W. 36th Avenue, Eugene, Oregon 97405.

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4. Generational Sovereignty as a Standing


Consideration........................................................... 218
5. Posterity and Madison: The Present Generation
Considered as a “Faction” ....................................... 219
C. Managing the Floodgates .............................................. 221
Conclusion ............................................................................ 222

INTRODUCTION: TREATING POSTERITY LIKE DIRT

Are [later generations] bound to . . . consider the preceding


generation as having had a right to eat up the whole soil of their
country, in the course of a life . . . ? Every one will say no; that the
1
soil is the gift of God.
The way in which a society cares or does not care for its dirt—its
land—reflects the degree to which it cares or does not care for its
own long-term future. As a result of farming, logging, grazing,
mining, land development, and other activities, topsoil in the
United States is washing away sixteen times faster than new topsoil
is naturally generated. We thereby allow the biological capital on
which our future sustenance depends to disappear as sediment
down our streets, ditches, and rivers, into the irrecoverable depths
of the ocean. Our willingness to treat our dirt carelessly betrays our
willingness to treat our posterity carelessly.
The same carelessness can be found in our willingness to drain in
decades the Great Plains aquifers that take millennia to recharge,
or our willingness to risk long-term climate disruption in exchange
for short-term economic benefit, or our willingness to saddle our
descendants with massive national debt. In all these instances, we
defer payment for our own lifestyle choices to later generations.
This degradation begs a difficult legal question: Can posterity
sue? Are future generations protected from discrimination in the
same way that politically disadvantaged minority groups are? Do
our descendants have a legal mechanism for challenging adverse
water allocation decisions resembling the one that allows a
downstream state to sue an upstream state?
Objections begin to crop up as fast and thick as dandelions: On
what grounds would posterity sue? What would be the cause of
action? How could an attorney prove that posterity appointed her?

1. Letter from Thomas Jefferson to John Eppes (June 24, 1813), in 13 THE WRITINGS OF
THOMAS JEFFERSON 272 (Albert Ellery Bergh ed., 1905).
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(Bring a Ouija board to court?) Perhaps most important, how can


people who are not yet born—who are not yet real—have legal
standing to sue? This article touches on a few of these questions,
focusing primarily on the knotty central question of posterity
standing.
Part I provides an overview of some intergenerational inequities
involving the environment. It also summarizes a constitutional
theory of intergenerational justice: the Stewardship Doctrine.
According to that doctrine, the existing language of the
Constitution, taken together with the expressed views of the
Constitution’s framers, provides legal grounds for controlling the
clearest and worst instances of generational overreaching. Part I
acknowledges standing as the foremost practical obstacle to full
implementation of the Stewardship Doctrine and sets out the
article’s primary theses: 1) Present representatives of future
generations do have standing to sue in federal court; and 2) this
standing for future generations and their representatives may be
derived from the grant of equitable powers in Article III, Section 2
of the Constitution.2
Part II of the article examines the role of equity as it was
understood by the framers and as it has historically been applied by
the Supreme Court. It explains how the history and principles of
equitable jurisprudence support posterity standing, attending
especially to equity’s traditional role in the representation of legal
incompetents, as well as its role in applying general legal principles
to circumstances unforeseen by a law’s creators.
Part III offers responses to some potential philosophic and legal
objections to posterity standing, giving particular consideration to
separation of powers concerns as those concerns have been
formulated in recent years by Justice Scalia.

2. A number of interesting and important issues lie beyond this article’s scope. For
instance, questions regarding state secession, long-term public debt, and abortion are not
addressed in this article. (As regards abortion, however, it seems worth noting that at least
some of the arguments proffered here more clearly apply to protection of generalized,
public interests, in breathable air for instance, than to such individualized rights—to
continue a specific life, inherit specific property, etc.—such as might be alleged on behalf of
individual fetuses or fetuses as a class.)
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I. OVERVIEW: THE STEWARDSHIP DOCTRINE AND THE CALL FOR


POSTERITY STANDING

‘Tis not the concern of a day, a year, or an age; posterity are virtually
involved in the contest, and will be more or less affected, even to the
3
end of time, by the proceedings now.
The present generation of humanity is pursuing a multitude of
policies and practices that jeopardize fundamental interests of
future generations. This is not news; it is a fact that we increasingly
take for granted.
We deplete freshwater aquifers many times faster than nature can
replenish them.4 We wash precious topsoil, built up over millennia,
into the rivers and oceans.5 We allow the manufacture of
radioactive waste (expected to encumber the health of the planet
virtually forever) before developing safe, permanent disposal
technologies for that waste.6 We introduce thousands of previously

3. THOMAS PAINE, COMMON SENSE 82 (Isaac Kramnick ed., Penguin Classics 1986)
(1776).
4. A case in point is the Ogallala, which provides water for one-fifth of all agriculture in
the United States. See generally Robert Verchick, Dust Bowl Blues: Saving and Sharing the
Ogallala Aquifer, 14 J. ENVTL. L. & LITIG. 13 (1999). At present usage rates, the aquifer will be
exhausted in twenty to thirty years. Once drained, it will take 6,000 years to recharge at its
natural rate. Id. at 13, 17 (citing Erla Zwingle, Ogallala Aquifer: Wellspring of the High Plains,
NAT’L GEOGRAPHIC, Mar. 1993, at 80, 83, 99–100). The state of Oklahoma, one of several
states dependent upon the aquifer, has adopted a policy of “planned depletion in fifty
years.” Lori L. Triplett, The Ogallala Aquifers: Living in the Present, Planning for the Future, in
THE GREAT PLAINS SYMPOSIUM 1999: THE OGALLALA AQUIFER —STEPS TO SUSTAINABILITY 13,
14 (Lori L. Triplett ed., 1999); see also Ronald Kaiser & Frank F. Skillern, Deep Trouble: Options
for Managing the Hidden Threat of Aquifer Depletion in Texas, 32 TEX. TECH L. REV. 249 (2001).
5. See Robert Benson, The Seventh Generation Act: A Model Law Allowing Law Suits for Damage
to Natural Resources Needed to Sustain Future Generations, 54 GUILD PRAC. 185, 186 (1997)
(reporting that the U.S. topsoil erosion rate (over five billion tons per year) is sixteen times
the rate of natural soil formation; one-third of original U.S. cropland is removed from
production due to unsustainable farming practices; the U.S. has lost $44 billion in decreased
production, water contamination, and dam siltation) (citing U.S. DEP’T OF AGRICULTURE,
MISC. PUB. NO. 1482, THE SECOND RCA APPRAISAL, SOIL, WATER AND RELATED RESOURCES
ON NON-FEDERAL LAND IN THE UNITED STATES: ANALYSIS OF CONDITIONS AND TRENDS (June,
1989)); Donella H. Meadows, Ecology and Agriculture: A Marriage That Must Be Made on Earth,
L.A. TIMES, Nov. 19, 1989, at M4; James Stephen Carpenter, Farm Chemicals, Soil Erosion, and
Sustainable Agriculture, 13 STAN. ENVTL. L.J. 190, 203 (1994).
6. See generally MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS IN
TOXIC AND NUCLEAR WASTE SITING 27–28 (1994); Lawrence Flint, Shaping Nuclear Waste Policy
at the Juncture of Federal and State Law, 28 B.C. ENVTL. AFF. L. REV. 163, 163 (2000) (“The
spent nuclear fuel that reactors generate remains radioactive for hundreds of thousands of
years; however, all the spent fuel that has been generated to date is stored in temporary,
short-term facilities.”); Ted F. Peters, Ethical Considerations Surrounding Nuclear Waste
Repository Siting and Mitigation, in NUCLEAR WASTE: SOCIOECONOMIC DIMENSIONS OF LONG-
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unknown chemicals7 and gene sequences8 into the environment


without adequately testing for their long-term effects upon humans
9
and other life forms. We eliminate natural habitats and drive plant
and animal species into extinction10 at unprecedented rates,
ensuring that our children will inherit a world with less biodiversity
than our own. By continuing to utilize technologies that we know

TERM STORAGE 41, 51 (Steven H. Murdock et al. eds., 1983) (“How morally appropriate is it
for one group to satisfy its own consumptive desires for a few decades and then exact
payment from countless as yet to be born civilizations for hundreds of thousands of years?”);
EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON
PATRIMONY, AND INTERGENERATIONAL EQUITY 169–91 (1989) (noting the impracticality of
purely national disposal and oversight plans for nuclear waste, given that national territorial
boundaries and governments cannot be relied upon to remain unchanged for centuries or
even decades).
7. See GERRARD, supra note 6, at 7 (80,000 chemicals are in present commercial use; 1,000
chemicals are introduced annually, very few are regulated; only a small fraction of the
remainder are thoroughly tested for long term toxicity); Richard L. Williamson et al.,
Gathering Danger: The Urgent Need to Regulate Toxic Substances That Can Bioaccumulate, 20
ECOLOGY L.Q. 605, 608 (1993) (regulatory attention is inadequate to deal with persistent,
bioaccumulating toxics); Carpenter, supra note 5, at 196–97 (approval process for new
pesticides by EPA and FDA is deficient in calculating exposures and risks, particularly
synergistic risks) (citing NAT’L RESEARCH COUNCIL, COMPLEX MIXTURES: METHODS FOR IN
VIVO TOXICITY TESTING 3 (1988); NAT’L RESEARCH COUNCIL, DIET, NUTRITION, AND CANCER
14–29 (1982)).
8. See Sophia Kolehmainen, Precaution Before Profits: An Overview of Issues in Genetically
Engineered Food and Crops, 20 VA. ENVTL. L.J. 267, 274, 281, 292 (2001); Miguel A. Altieri, The
Environmental Risks of Transgenic Crops: An Agroecological Assessment, in BIOTECHNOLOGY AND
BIOSAFETY: PROCEEDINGS OF AN ASSOCIATED EVENT OF THE FIFTH ANNUAL WORLD BANK
CONFERENCE ON ENVIRONMENTALLY AND SOCIALLY SUSTAINABLE DEVELOPMENT 31 (Ismail
Sergeldin & Wanda W. Collins eds., 1999).
9. See REED F. NOSS ET AL., ENDANGERED ECOSYSTEMS OF THE UNITED STATES: A
PRELIMINARY ASSESSMENT OF LOSS AND DEGRADATION (1995) (in the 48 contiguous states,
95% of “old growth” forest is lost or seriously degraded, 99% of eastern hardwood forest,
and 70% of riparian forest); NAT’L RESEARCH COUNCIL, WETLANDS: CHARACTERISTICS AND
BOUNDARIES (1995) (30%, 117 million acres, of U.S. wetlands have been lost since European
settlement or 53% if Alaska is excluded); John Harte, Land Use, Biodiversity, and Ecosystem
Integrity: The Challenge of Preserving Earth’s Life Support System, 27 ECOLOGY L.Q. 929, 938
(2001) (habitat destruction is the greatest threat for most endangered species); Peter
Vitousek et al., Human Domination of Earth’s Ecosystems, 277 SCI. 494 (1997).
10. RICHARD E. LEAKEY & ROGER LEWIN, THE SIXTH EXTINCTION: PATTERNS OF LIFE AND
THE FUTURE OF HUMANKIND 245 (1995) (“Dominant as no other species has been in the
history of life on Earth, Homo sapiens is in the throes of causing a major biological crisis, a
mass extinction, the sixth such event to have occurred in the past half billion years.”); Harte,
supra note 9, at 939 (reporting global annual extinction from habitat loss is estimated
between 1,000 and 10,000 species lost each year—an extinction rate “orders of magnitude
higher than the ‘natural background’ (that is, the pre-human) rate”); Joby Warrick, Mass
Extinction Underway, Majority of Biologists Say, WASH. POST, Apr. 21, 1998, at A4; Vitousek et al.,
supra note 9, at 495 (42% of bird species driven to extinction; one-fourth of ocean fisheries
severely depleted, 44% of ocean fisheries at limit of exploitation).
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create a likelihood of global climate change,11 we jeopardize the


very existence of the human race.
These various forms of environmental degradation, according to
many indicators, have been particularly acute in the United States.12
The question naturally arises then: In this putatively enlightened
democratic republic, how can such short-sighted conduct persist?
One answer is that the systematic disregard of society’s long-term
interests is a natural, predictable outcome of the democratic
process. As one commentator states the problem:
Established rules of what has been called democratic government are
based on constituencies that predetermine that the future will be
discounted and future generations will be exploited. . . . Any
constituency without power loses out. . . . [F]uture generations are
never present, and no penalty results from their exploitation.
Pollution, resource depletion, and debt are conveniently passed on.
Fly now, let future generations pay later. This is the effect of
13
“constituency democracy.”

11. See Lakshman Guruswamy, Climate Change: The Next Dimension, 15 J. LAND USE &
ENVTL. L. 341, 347 (2000); Henry D. Jacoby et al., Kyoto’s Unfinished Business, 77 FOREIGN AFF.
54, 56–57 (1998); Claire Breidenich et al., The Kyoto Protocol to the United Nations Framework
Convention on Climate Change, 92 AM. J. INT’L L. 315, 316 (1998); Vitousek et al., supra note 9,
at 496 (since the beginning of the Industrial Revolution, atmospheric concentration of
carbon dioxide has increased thirty percent); Patrick Parenteau, Rearranging the Deck Chairs:
Endangered Species Act Reforms in an Era of Mass Extinction, 22 WM. & MARY ENVTL. L. & POL’Y
REV. 227, 227 (1998) (during the same period, average global temperature has increased 1o
C.) (citing WORLD METEOROLOGICAL ORGANIZATION/UNITED NATIONS ENVIRONMENT
PROGRAMME, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE: THE
IPCC SCIENTIFIC ASSESSMENT xii (J.T. Houghton et al. eds., 1990)); John J. Fialka, Kyoto
Treaty’s Foes in U.S. Could Kill Pact Around the World, WALL ST. J., Oct. 19, 1999, at B1
(describing human-caused climate change as probability accepted by “many scientists”); see
also Arno Rosemarin & Armin Rosencranz, CFC’s and the Stratospheric Ozone Layer, 19 AMBIO
279, 279 (1990).
12. See, e.g., Eileen Claussen, Climate Change: Present and Future, 27 ECOL. L.Q. 1373, 1378
(2001) (United States, with less than 5% of global population, is responsible for 25% of
greenhouse gas emissions) (citing U.S. Energy Info. Admin., Issues in Focus, at
http://www.eia.doe.gov/oiaf/aeo/issues.html#kyo, which no longer publishes the numbers
in question); Donald A. Brown, The U.S. Performance in Achieving Its 1992 Earth Summit Global
Warming Commitments, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,741, 10,760 (2002) (“President
Clinton acknowledged that ‘the United States has a special responsibility for the [global
warming] problem: The United States has less than 5[%] of the world’s population, enjoys
22[%] of the world’s wealth, but emits more than 25[%] of the world’s [greenhouse gas
emissions].’”) (citing Joby Warrick & Peter Baker, Clinton Details Global Warming Plan, WASH.
POST, Oct. 23, 1997, at A1).
13. William Boyer, Environmental Rights: Legal Standing for Future Generations 3–4
(Sept. 1997) (unpublished paper presented at 15th World Conference of the World Futures
Studies Federation, Brisbane, Australia) (on file with author); see Rodger Schlickeisen,
Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL.
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To counteract this bias, a number of scholars, activists, and


political leaders have begun to advocate for the recognition of
intergenerational justice as an overriding political principle, one to
which subordinate public and private policies must be made to
conform.14 The principle has become well-established in
15
international law, and is also explicitly recognized in several

ENVTL. L.J. 181, 182, 219 (1994) (“[N]ormal legislative processes are systemically biased in
favor of current benefits as opposed to the long-term future. . . . Elected officials align
themselves with beggar-the-children policies . . . to provide immediate economic benefits for
constituents who vote now to the detriment of future generations who cannot.”); R. George
Wright, The Interests of Posterity in the Constitutional Scheme, 59 U. CIN. L. REV. 113, 113, 122
(1990) (“Once a society chooses, consciously or not, to take advantage of future generations,
the democratic process of electoral competition tends to facilitate, rather than inhibit such a
choice.”); Richard A. Epstein, Justice Across the Generations, 67 TEX. L. REV. 1465, 1465 (1989)
(“Democratic processes with universal suffrage cannot register the preferences of the
unborn, and dialogue between generations is frustrated when future generations, or at least
some future generations, are of necessity silent.”); J.A. Doeleman, On the Social Rate of
Discount: The Case for Macroenvironmental Policy, 2 ENVTL. ETHICS 45, 51 (1980) (“Most . . .
politicians, are caught up in the myopic demands of their work, making grass-roots decisions,
compromising the environment when it seems optimal to do so under the immediate
pressure of scarcity.”).
14. See Boyer, supra note 13; Schlickeisen, supra note 13; Wright, supra note 13; WEISS,
supra note 6; CATHERINE REDGWELL, INTERGENERATIONAL TRUSTS AND ENVIRONMENTAL
PROTECTION (1999); BRUCE EDWARD AUERBACH, UNTO THE THOUSANDTH GENERATION:
CONCEPTUALIZING INTERGENERATIONAL JUSTICE (1995); Clark Wolf, Contemporary Property
Rights, Lockean Provisos, and the Interests of Future Generations, 105 ETHICS 791 (1995); Benson,
supra note 5; Timothy Patrick Brady, Comment, “But Most of It Belongs to Those Yet To Be Born:”
The Public Trust Doctrine, NEPA, and the Stewardship Ethic, 17 B.C. ENVTL. AFF. L. REV. 621
(1990).
15. See, e.g., Stockholm Declaration of the United Nations Conference on the Human Environment,
at 3, U.N. Doc. A/CONF.48/14/Rev.1 (1973), reprinted in 11 I.L.M. 1416, 1417–18 (1972)
(Principle 1: “Man . . . bears a solemn responsibility to protect and improve the environment
for present and future generations.” Principle 2: “The natural resources of the earth
including the air, water, land, flora and fauna and especially representative samples of
natural ecosystems must be safeguarded for the benefit of present and future
generations . . . .” Principle 5: “The non-renewable resources of the earth must be
employed in such a way as to guard against the danger of their future exhaustion and to
ensure that benefits from such employment are shared by all mankind.”); Convention on
International Trade in Endangered Species of Wild Fauna and Flora, opened for signature Mar.
3, 1973, 993 U.N.T.S. 243, 244 (recognizing that “wild fauna and flora in their many
beautiful and varied forms are an irreplaceable part of the natural systems of the earth which
must be protected for this and the generations to come”); World Charter for Nature, Oct. 28,
1982, G.A. Res. 317/7, 37 U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51
(1983) reprinted in 22 I.L.M. 455, 456 (1983) (resolving to “conduct [the member states’]
activities in recognition of the supreme importance of protecting natural systems,
maintaining the balance and quality of nature and conserving natural resources, in the
interests of present and future generations”); Report of the World Commission on Environment
and Development, U.N. GAOR, 42nd Sess., Annex 1, Agenda Item 83e, U.N. Doc. A/42/427
(1987), reprinted in GRO HARLEM BRUNDTLAND, WORLD COMM’N ON ENV’T & DEV., REPORT OF
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national constitutions,16 state constitutions,17 and U.S. federal


statutes.18
Moreover, careful historical and legal research has led some
scholars to conclude that a mandate for intergenerational justice
can be fairly derived from the existing language of the U.S.
19 20
Constitution. The suggested mandate derives its form and its
substance from several constitutional clauses. The Equal
Protection Clause of the Fourteenth Amendment, for instance, is
read to protect remote future generations from discrimination just
as it protects other politically disenfranchised groups.21 The
Takings and Due Process Clauses of the Fifth Amendment, both of

THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT: “OUR COMMON FUTURE ” 348
(1987)(“States shall ensure that the environment and natural resources are conserved and
used for the benefit of present and future generations.”); Declaration on the Responsibility of the
Present Generations Towards Future Generations, UNESCO, 29th Sess., Agenda Item 6.6, at 2,
U.N. Doc. 29c/18/Add.1 (1997).
16. See, e.g., BRAZ. CONST. tit. VIII, ch. VI, art. 225; PORT. CONST. pt. I, § 3, ch. 2, art. 66,
para. 1; GUY. CONST. art. 36; IRAN CONST. § IV, art. 50; PAPUA N.G. CONST. pmbl: National
Goals and Directive Principles § 4; NAMIB. CONST. ch. XI, art. 95; VANUATU CONST. ch. 2, pt.
2, art. 7.
17. PA. CONST. art. I, § 27 (“Pennsylvania’s public natural resources are the common
property of all the people, including generations yet to come. As trustee of these resources,
the Commonwealth shall conserve and maintain them for the benefit of all the people.”);
MONT. CONST. art. IX, § 1; HAW. CONST. art. XI, § 1; ILL. CONST. art XI, § 1.
18. See, e.g., National Environmental Policy Act of 1969 § 101(b)(1), 42 U.S.C. §
4331(b)(1) (2000) (“[I]t is the continuing responsibility of the Federal Government to . . .
fulfill the responsibilities of each generation as trustee of the environment for succeeding
generations . . . .”); National Park Service Organic Act, 16 U.S.C. § 1 (2000) (The purpose of
national parks, monuments and reservations “is to conserve the scenery and the natural and
historic objects and the wildlife therein and to provide for the enjoyment of the same in such
manner and by such means as will leave them unimpaired for the enjoyment of future
generations.”); Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451–1464, 1452 (2000)
(national policy “to preserve, protect, develop, and where possible, to restore or enhance,
the resources of the Nation’s coastal zone for this and succeeding generations”); Nuclear
Waste Policy Act of 1982, 42 U.S.C. §§ 10,101–10,270, 10,131(a)(7) (2000) (“[A]ppropriate
precautions must be taken to ensure that [high level radioactive waste and spent nuclear
fuels] do not adversely affect the public health and safety and the environment for this or
future generations.”); Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2000).
19. See, e.g., Jim Gardner, Discrimination Against Future Generations: The Possibility of
Constitutional Limitation, 9 ENVTL. L. 29 (1978); Bradley C. Bobertz, Toward a Better
Understanding of Intergenerational Justice, 36 BUFF. L. REV. 165, 170–71 (1987); Wright, supra
note 13, at 113; Charlie Ogle, Does the United States Constitution Provide Environmental
Protection? (Mar. 7, 1998) (paper presented at Public Interest Law Conference, University of
Oregon), at http://www.conlaw.org.
20. The appropriate name for the doctrine remains unsettled. It is referred to variously
as the Stewardship Doctrine, the Posterity Doctrine, the Seventh Generation Doctrine, or the
Intergenerational Equity Doctrine, with the first label being perhaps the most common.
21. See Wright, supra note 13, at 122–24.
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which are historically rooted in the writings of John Locke, are


construed to harmonize with that philosopher’s highly developed
22
system of intergenerational rights and obligations. These
provisions, and the remainder of the Constitution, are all
interpreted in the light of the Preamble’s Posterity Clause, which
provides that “We the People . . . to ourselves and our Posterity, do
ordain and establish this Constitution.” 23 Aside from such textual
mandates, the doctrine also derives support, and much of its
specific shape, from the abundant discussions of intergenerational
justice that the framers (and their intellectual predecessors) saw fit
to preserve in writing.
The doctrine just described, however elegant and well grounded
it may be, will make little difference, if it is not conjoined with
practical procedural mechanisms for asserting posterity’s
constitutional interests in court.24 The pragmatic lawyer needs
more than principles and statements of right; she needs
jurisdiction and standing.

22. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT ¶ 7, at 312, ¶ 25, at 327, ¶ 27, at
328–29, ¶ 31, at 332, ¶ 116, at 390 (Peter Laslett ed., New American Library 1965) (1698)
(among Locke’s intergenerational precepts: that preservation of the human species is the
primary and fundamental law from which all other natural laws depend; that “God gave the
world to Adam and his posterity in common”; that private property interests in natural
resources are only legitimate if “there is enough and as good left in common for others”;
that “[n]othing was made by God for man to spoil or destroy”; and that no generation may
legitimately infringe upon the sovereignty of a later generation—for “whatever
Engagements or Promises any one has made for himself, he is under the Obligation of them,
but cannot by any Compact whatsoever, bind his children or Posterity”). See generally Wolf,
supra note 14; Robert Elliot, Future Generations, Locke’s Proviso and Libertarian Justice, 3 J.
APPLIED PHIL. 217 (1986).
23. U.S. CONST. pmbl. (“We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and
our Posterity, do ordain and establish this Constitution for the United States of America.”)
(emphasis added).
24. See Ted Allen, Note, The Philippine Children’s Case: Recognizing Legal Standing for Future
Generations, 6 GEO. INT’L ENVTL. L. REV. 713, 732 (1994) (“While lawsuits are not the only
solution, the present generation, has not, and cannot be expected, to account for the
interests of succeeding generations, given people’s natural bias toward current needs.
Urging government officials to carefully consider the interests of posterity is meaningless
unless there are procedural means for challenging the officials when they do not.”); E.
Joshua Rosenkranz, Note, A Ghost of Christmas Yet to Come: Standing to Sue For Future
Generations, 1 J.L. & TECH. 67, 71 (1986) (“For the purpose of this note, I assume the
existence of [future generations’] rights. The rights, however, are worthless without a voice
to assert them and a mechanism by which to enforce them.”).
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Should the proposed doctrine be adopted, federal court


jurisdiction can be readily established. Article III, Section 2 grants
the Supreme Court original jurisdiction over controversies “arising
under” the federal Constitution, and the lower federal courts are
similarly authorized to hear such actions pursuant to 29 U.S.C. §
1331.25 There is at least some authority confirming the existence of
a private cause of action for the defense of constitutional rights in
the absence of any more specific congressional authorization than
§ 1331.26
The issue of standing is somewhat more problematic, however,27
especially when considered in light of some recent Supreme Court
28
decisions. If living litigants so often have difficulty establishing
their standing to sue, what chance is there for plaintiffs who do not
yet physically exist?29

25. 28 U.S.C. § 1331 (2002) (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
26. See, e.g., Ex Parte Young, 209 U.S. 123 (1908). In fact, there are a number of existing
federal statutes that have been interpreted as providing more specific authorization for
posterity suits. See Brady, supra note 14 (suggesting a role for posterity plaintiffs in NEPA
litigation); Raymond A. Just, Comment, Intergenerational Standing under the Endangered Species
Act: Giving Back the Right to Biodiversity after Lujan v. Defenders of Wildlife, 71 TUL. L. REV. 597
(1996) (recommending posterity suits under the auspices of the ESA).
27. See, e.g., J. William Futrell, Environmental Rights and the Constitution, in BLESSINGS OF
LIBERTY: THE CONSTITUTION AND THE PRACTICE OF LAW 43, 58 (ALI/ABA Comm. on
Continuing Prof’l Educ. ed., 1988) (“[F]ederal courts may well be barred by the “case” or
“controversy” requirement of article III, section 2 of the Constitution and by standing
doctrines from considering the rights of future generations. . . . Only a constitutional
amendment could ensure that this currently unrepresented class will have . . . legal reality.”).
28. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
29. This is not to say that the absence of posterity standing would render a Stewardship
Doctrine completely ineffectual. There may be circumstances in which living parties, with
independent standing, could assert posterity’s interests through a theory of jus tertii. See
generally Robert Allen Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71
YALE L.J. 599 (1962); Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L. REV. 423
(1974); Gardner, supra note 19, at 50–52. There may also be situations in which present
persons could assert their own intergenerational rights vis-à-vis earlier generations. Imagine,
for instance, a situation in which the government of a prior generation has purported to
convey perpetual private property rights in some public resource, and the present
recognition and exercise of said rights, individually or cumulatively, will severely and
permanently prejudice the interests of the present generation (as well as the interests of
future generations). The overallocation of private water rights within a finite watershed
would constitute one of several possible scenarios. In such a circumstance, the original
transaction could be challenged by aggrieved members of the present generation as an
unsupportable violation of principles of intergenerational justice. The aggrieved plaintiffs
might ask the court to read an implied equitable servitude on behalf of later generations into
the original transactions. In the absence of such implied servitudes, they could argue that
the original transactions were (and remain) unconstitutional and unenforceable. Such an
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2003] Tommorow’s Standing Today 197

Undaunted by such considerations, many legal scholars and


judges who have addressed the issue have concluded that judicial
30
standing for future generations is both possible and desirable.
This article is offered as yet another voice in the growing chorus; its
theses being that 1) present representatives of future generations
do have standing to sue in federal court; and 2) this standing for
future generations and their representatives may be derived from
the grant of equitable powers in Article III, Section 2 of the
Constitution.

II. EQUITABLE STANDING

A. “Arising . . . in Equity”
Article III, Section 2 of the U.S. Constitution provides that the
federal judicial power extends “to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority.” 31

approach would have profound implications for the law of “regulatory” takings
compensation. See Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15
THE PAPERS OF THOMAS JEFFERSON 392–98 (Boyd 1950) [hereinafter Boyd] (“It
[generational sovereignty] enters into the resolution of the questions: Whether the
nation . . . may change the appropriation of lands given . . . in perpetuity? Whether they may
abolish the charges and privileges attached on lands . . . and it renders the question of
reimbursement a question of generosity and not of right.”) (emphasis added).
30. See Cape May County Chapter, Inc. v. Macchia, 329 F. Supp. 504, 514 (D.N.J. 1971)
(finding, in a NEPA suit, that “the members of [the plaintiff] class are so numerous, in being
and in generations yet unborn, as to make it . . . impossible to bring them all before the
Court” but holding that the already born plaintiffs adequately represented the unborn
generations for purposes of the action); CHRISTOPHER D. STONE, SHOULD TREES HAVE
STANDING? TOWARD LEGAL RIGHTS FOR NATURAL OBJECTS 65–77 (1974); Allen, supra note
24, at 732, 740; Rosenkranz, supra note 24, at 99–102 (advocating recognition of “posterity
suits” brought by self-appointed court-certified “posterity lawyers”); Boyer, supra note 13, at
3–4 (advocating “political and legal standing for future generations” and asserting that
“anything less constitutes structural obsolescence and generational exploitation”); Gardner,
supra note 19, at 50; Bobertz, supra note 19, at 172–78; Benson, supra note 5; Just, supra note
26. See also Oposa v. Factoran, G.R. No 101083 (Sup. Ct. of the Philippines, July 30, 1993)
reprinted in 33 I.L.M. 173, 185 (1994) (“We find no difficulty in ruling that [the plaintiff
children] can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations
can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. . . . Put a little differently, the minors’ assertion
of their right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for generations to come.”).
31. U.S. CONST., art. III, § 2 (emphasis added).
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Although Rule 2 of the Federal Rules of Civil Procedure (adopted


in 1938) abolished the formal distinction between actions at law
and suits in equity, the federal judiciary’s substantive equitable
powers are embedded in the Constitution and remain
undiminished.32
In order to discern the implications of this grant of “equitable”
jurisdiction, it is helpful to understand what, exactly, the term
“equity” signified for the framers. The text of the Constitution
does not itself elaborate or clarify the term, but as one scholar
notes: “[T]he lack of constitutional definition in no way obscures
what the Framers meant by ‘all cases in law and equity.’ For the
Framers, as for us, the word was backed by several centuries of
jurisprudence.” 33 We may adequately determine what the framers
meant by reviewing relevant comments made contemporaneously
with the Constitution’s passage and by consulting the extensive
record of the English common law.34
First and foremost, “equity” was about fairness (or “equal”
treatment, as the word’s etymology suggests). Using this sense of
the word, James Madison, in a letter to Thomas Jefferson,
characterized that chain of intergenerational obligations that exist
within a healthy society as an “equitable” matter: “There seems
then to be a foundation in the nature of . . . the relation which one
generation bears to another, for the descent of obligations from
one to another. Equity requires it. Mutual good is promoted by
it.” 35
Equity involved much more than this rudimentary fairness
principle, however. Historically, equity served as a primary source
of standing and jurisdiction in a wide variety of situations that
would otherwise have been nonjusticiable. Many of the

32. See, e.g., Comm. Nat’l. Bank v. Parsons, 144 F.2d 231, 240–41 (5th Cir. 1944), reh’g
denied, 145 F.2d 191 (1944), cert. denied, 323 U.S. 796–97 (1944).
33. GARY MCDOWELL, EQUITY AND THE CONSTITUTION 4 (1982).
34. See Smith v. Alabama, 124 U.S. 465, 478 (1887) (“The interpretation of the
Constitution of the United States is necessarily influenced by the fact that its provisions are
framed in the language of the English common law, and are to be read in the light of its
history.”); Rule of Court, 2 U.S. (2 Dall.) 411, 413–14 (1792) (“The Court considers the
practice of the courts of King’s Bench and Chancery in England, as affording outlines for the
practice of this court.”); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 164 (1938); 27A AM.
JUR. 2D Equity § 84 (1996).
35. Letter from James Madison to Thomas Jefferson (Feb. 4, 1790), in 1 THE REPUBLIC OF
LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 651
(James Morton Smith ed., 1995).
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2003] Tommorow’s Standing Today 199

jurisdictional difficulties and standing issues that equity was


originally designed to address are precisely the same sorts of
difficulties and issues that would be presented by intergenerational
litigation today.

B.. Equity’s Application to Cases Involving Legal Incompetents


For instance, equitable jurisdiction traditionally extended to all
cases involving legal incompetents.36 At the time of this country’s
founding, the Court of Chancery (read: court of equity) was
responsible for defending the rights of infants as guardian ad
litem.37 It similarly served as the trustee for “lunatics and idiots.” 38
These traditional, equitable roles of the judiciary continue to be
recognized through such instruments as the Federal Rules of Civil
Procedure 17(c)39 and the Uniform Guardianship and Protective
Proceedings Act.40 These rules provide standing and
representation for incompetent parties who would otherwise be
denied standing on the grounds that they lack capacity to request
counsel, communicate with counsel, or otherwise express their
41
preferences.

36. See 27A AM. JUR. 2D Equity § 63 (1996) (“As part of the inherent power of equity, a
court of equity has full and complete jurisdiction over the persons of those who labor under
any legal disability, and over their property.”) (footnotes omitted).
37. WILLIAM BLACKSTONE, 3 COMMENTARIES 729 (Bernard C. Gavit ed., 1941); 3 id. at
543, 1 id. at 203; GEORGE SPENCE, 1 THE EQUITABLE JURISDICTION OF THE COURT OF
CHANCERY 605–15 (1846).
38. 1 BLACKSTONE, supra note 37, at 132; 3 id. at 543; 1 SPENCE, supra note 37, at 618–20
(stating that the equitable oversight of “idiots and lunatics” included a responsibility to
ensure “that their lands and tenements shall be safely kept, without waste and destruction”).
39. FED. R. CIV. P. 17(c) (“Whenever an infant or incompetent person has a
representative, such as a general guardian, committee, conservator, or other like fiduciary,
the representative may sue or defend on behalf of the infant or incompetent person. An
infant or incompetent person who does not have a duly appointed representative may sue by
a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an
infant or incompetent person not otherwise represented in an action or shall make such
other order as it deems proper for the protection of the infant or incompetent person.”); see
also Doe v. Shalala, 862 F.Supp. 1421, 1426 (D. Md. 1994) (referring to 17(c) and suggesting
that, if a human embryo had legally assertable interests, those interests would have to be
asserted through the person of a guardian ad litem; also holding that a fetus has no such
rights under the Fourteenth Amendment).
40. Uniform Guardianship & Protective Proceedings Act §§ 305(b), 406(b) (1997)
(allowing the court to appoint a lawyer to represent a person alleged to be incapacitated if
the court determines that representation is necessary).
41. See, e.g., In re Zawisza, 73 B.R. 929, 936 (E.D. Pa. 1987) (allowing attorney to file
voluntary Chapter 13 petition on behalf of incompetent as incompetent’s “next friend,”
pursuant to Fed. R. Civ. P. 17(c), even though attorney had never communicated with client,
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Future generations occupy a position that resembles, both legally


and practically, the position of these other equitably protected
42
“incompetent” classes. They cannot request attorney
representation. They cannot directly express any of their own
interests or preferences. They have no access to the usual legal
mechanisms for protecting their interests (such as voting); hence,
there can be no presumption of legislative representation. Relative
to other members of society, future generations are defenseless,
dependent, and incapable of doing harm.43 Numerous
commentators, noting these similarities between the situation of
future generations and the other protected incompetents, have
reasoned that the same principles that justify standing for the latter
class must also require it for the former.44
Of course, as with lawyers for other classes of incompetents, the
posterity lawyer will not have the benefit of client consultation and

had not been retained by client, and had not been appointed as guardian ad litem; “In light
of the Debtor’s incompetence, any court-appointed guardian would have to function under
the same handicap of no communication and ‘lack of authorization’ to retain counsel.
Hence any court-appointed guardian would be in no better a position to represent the
debtor than the next friend.”); Superintendent of Belchertown State School v. Saikewicz,
370 N.E.2d 417, 431 (Mass. 1977) (a guardian may order discontinuation of leukemia
treatment for a severely mentally retarded sixty-seven-year-old patient because, had patient
been competent, he would have ordered discontinuation himself).
42. See, e.g., AUERBACH, supra note 14, at 14; Allen, supra note 24, at 721 n.47 (“While
future generations do not exist in the same way that children do, both have legal rights
which they cannot express without assistance. While specific interests of individual children
and members of future generations are difficult to ascertain, both share certain group needs,
including the need for a habitable environment.”).
43. See AUERBACH, supra note 14, at 14 (rejecting the argument sometimes made by social
contract theorists that future generations are owed no consideration precisely because they
lack the ability to either help or harm the present generation: “[T]hese are not reasons for
absolving the present generation of the obligation to act justly towards (past or) future
generations. On the contrary, they are reasons for us to be even more scrupulous in fulfilling
our obligation to act justly towards other generations.”) (emphasis added).
44. See Rosenkranz, supra note 24, at 75 (“To the extent that we accept an incompetent’s
incapacity to speak on her own behalf as a justification for allowing her father (or anyone
else) to speak for her, we must also accept the future generation’s incapacity to speak as a
justification for allowing some party—perhaps the posterity lawyer—to speak on its behalf. A
future generation is, in effect, incapacitated.”); Allen, supra note 24, at 723, 728–29;
AUERBACH, supra note 14, at 199–200; Just, supra note 26, at 630; see also EDMUND BURKE, An
Appeal from the New to the Old Whigs (1791), in FURTHER REFLECTIONS ON THE REVOLUTION IN
FRANCE 91 (Daniel E. Ritchie ed., 1992) (“With regard to futurity, we are to treat it like a
ward. We are not so to attempt an improvement of his fortune, as to put the capital of his
estate to any hazard.”). Parallels may also be drawn to the representation of the dead in
probate proceedings, and the appointment of trustees to represent the interests of
incompetent corporations during bankruptcy proceedings.
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2003] Tommorow’s Standing Today 201

may, therefore, represent the client’s preferences imperfectly. But,


again as with other incompetent clients, future generations would
appear to be better off with such imperfect advocacy than with no
advocacy at all. Moreover, as is the case with children, certain of
posterity’s fundamental needs (e.g. clean air and water, arable
land) and fundamental harms (e.g. high doses of radiation, toxic
waste) can be presumed with a fair degree of confidence.45 As
Terence Ball suggests:
[I]t seems a safe bet . . . that our distant descendants are unlikely to
subscribe to some theory of justice and the human good such that
they would respect, revere, or even excuse us for having bequeathed
to them an eroded, poisoned, polluted and overpopulated planet
whose inhabitants experience increased rates of skin and other
cancers, of infant mortality, birth defects, mental retardation,
46
radiation sickness, and other preventable ills.

C. Equity’s Application to Cases Involving


Unforeseen Circumstances
Equity also served, in the founders’ time, as authority for the
exercise of judicial flexibility in the face of unforeseen
circumstances. Blackstone describes this aspect of equity in the
following manner:
[Equity involves] the correction of that, wherein the law, by reason of
its universality, is deficient. For since in laws all cases cannot be
foreseen or expressed, it is necessary that when the general decrees of
the law come to be applied to particular cases, there should

45. See Allen, supra note 24, at 731 (“[T]he vast majority of those represented by
appointed guardians, such as infants and the incapacitated, cannot convey their views to
their attorneys. Nevertheless, their appointed lawyers are entrusted by the courts to express
what is in their clients’ interests. Likewise, representatives of future generations will not
know the unborn’s precise wishes, but can reasonably conclude that all members of
succeeding generations will share a common interest in having clean air, potable water,
biodiversity, and places of natural beauty.”); Daniel Callahan, What Obligations Do We Have to
Future Generations?, in RESPONSIBILITIES TO FUTURE GENERATIONS: ENVIRONMENTAL ETHICS
78–79 (Ernest Partridge ed., 1980) (“While our ignorance of the desires of future
generations may make it practically impossible to know what to work for on their behalf . . .
we cannot claim total ignorance of what might be very harmful to them. . . . [W]e could
hardly excuse our nuclear weapons testing on the grounds of our ignorance of what would
be ‘relevant’ to the life of those generations.”); AUERBACH, supra note 14, at 70 (“[W]e do
not need to know much about a people to know that high doses of radiation or toxic waste
are harmful to them.”); Gregory S. Kavka & Virginia Warren, Political Representation for Future
Generations, in ENVIRONMENTAL PHILOSOPHY: A COLLECTION OF READINGS 25 (Robert Elliot &
Arran Gare eds., 1983).
46. Terence Ball, The Incoherence of Intergenerational Justice, 28 INQUIRY 334 (1985).
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somewhere be a power vested of defining those circumstances, which,


47
had they been foreseen, the legislator himself would have expressed.
By extending the judicial power to cases arising “in equity under
the Constitution,” Article III, Section 2 provides the federal courts
with the authority and the responsibility to apply “universally”
worded constitutional principles to specific situations that were
unforeseeable when the document was drafted.48
To apply this principle to the topic at hand: The framers of the
Constitution made a “universal” statement in the Preamble that
government must serve the interests of the entire intergenerational
49
community. Elsewhere the framers made universal statements
regarding government’s obligation to accord all persons equal
protection. In specific instances where they foresaw a potential for
intergenerational injustice, the drafters, consistent with these other
directives, included specific language to prevent the violation of
posterity’s rights.50 However, during the intervening centuries,

47. 1 BLACKSTONE, supra note 37, at 34 (citing GROTIUS, 3 HISTORY OF THE LAW OF
NATIONS: RIGHTS OF WAR AND PEACE ch. 16 ); see ARISTOTLE, 5 NICOMACHEAN ETHICS 111
(W. D. Ross trans., J.L Ackrill ed., 1980) (“When the law speaks universally . . . and a case
arises on it which is not covered by the universal statement, then it is right . . . to say what the
legislator himself would have said had he been present, and would have put into his law if he
had known. . . . And this is the nature of the equitable, a correction of law where it is
defective owing to its universality.”); 27A AM. JUR. 2D Equity § 90 (1996) (“Ordinarily, the
fact that an action in equity is based on unusual facts is not sufficient to condemn the
petition or complaint, since equity jurisdiction will apply settled rules to unusual
conditions . . . . While sitting in its equitable capacity, a court may avail itself of powers
broad, flexible, and capable of being expanded to deal with novel cases and conditions. . . .
The fact that there is no precedent for the precise relief sought is not fatal to equity
jurisdiction, since precedent is only a guide and not a bar.”).
48. See Brutus (Robert Yates), N.Y. JOURNAL, Jan. 31, 1788 (interpreting Art. III, § 2 in
light of Grotius and Aristotle); THE FEDERALIST No. 83, at 505 (Alexander Hamilton)
(Clinton Rossiter ed., 1961) (“The great and primary use of a court of equity is to give relief
in extraordinary cases, which are exceptions to general rules.”); see also William H. Rehnquist,
The Notion of a Living Constitution, 54 TEX. L. REV. 693, 694 (1976) (articulating the same
principle, albeit without explicitly invoking the tradition of equity: “The framers of the
Constitution wisely spoke in general language and left to succeeding generations the task of
applying that language to the unceasingly changing environment in which they would
live. . . . Where the framers of the Constitution have used general language, they have given
latitude to those who would later interpret the instrument to make that language applicable
to cases that the framers might not have foreseen.”).
49. U.S. CONST. pmbl; see also MAX FARRAND, 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, 422 (1911) (notes and remarks of James Madison) (“In framing a
system which we wish to last for ages, we [should] not lose sight of the changes which ages
will produce.”).
50. See U.S. CONST. art. III, § 3 (renouncing the “corruption of blood” doctrine); id.
amend. XIII (prohibiting the intergenerational injustice of slavery); id. art. I, § 9, cl. 8, §10,
cl. 1 (prohibiting the intergenerational injustice of nobility). Compare PAINE, supra note 3, at
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2003] Tommorow’s Standing Today 203

opportunities for intergenerational injustice and harm have arisen


that the founders were not in a position to foresee. As Roger
Schlickeisen suggests, “It was . . . impossible for the drafters of the
Constitution to anticipate that within a mere two centuries an
exploding population with incredible nature-devouring technology
would fundamentally threaten the future welfare of the nation.” 51
The possibility of widespread, long-term environmental
destruction—a contingency both unanticipated by the founders
and inimical to the universal principle of intergenerational
protection set out in the Preamble—represents precisely the sort
of unforeseeable situation the framers would have expected the
federal courts to respond to by exercising their equitable flexibility.
The equitable principle of “unforeseen circumstances” supports
both federal court standing (for posterity as a class) and federal
court jurisdiction (over issues involving intergenerational rights
and resources).

D. Equity’s Application to Cases Where Injunctive Relief is Sought


to Prevent Irreparable Constitutional Harm
Courts of equity were the traditional venue for all cases in which
52
remedies of injunctive relief or specific performance were sought.
In this country, it has long been recognized that an equitable
action seeking injunctive relief for a violation of the federal

76 (critiquing hereditary nobility as “an insult and an imposition on posterity”); see also
Gardner, supra note 19, at 46 (characterizing art. I, §2, cl. 3 as the translation of “a general
constitutional policy—intergenerational fairness—into certain specific guidelines for
governmental action, such as permitting newly formed states to gain a numerical superiority
and allocating future representation in the House of Representatives on the basis of a
decennial census”).
51. Schlickeisen, supra note 13, at 201; see also id. at 220 (identifying “a value that [the
Constitution’s] drafters undoubtedly would have embraced had they possessed the necessary
knowledge and foresight . . . one of society’s most fundamental: to provide for proper
stewardship of the natural estate upon which human life depends”); Gardner, supra note 19,
at 46 (The founders “did not contemplate the possibility that the nation’s physical
environment would become degraded or depleted, or its technological and industrial
capacity advanced to the point at which certain types of decisions made by a present
generation could threaten the physical well-being or standard of living of future
generations.”).
52. See 1 BLACKSTONE, supra note 37, at 47 (Chancery was established “to give a more
specific relief, and one more adapted to the circumstances of the case, than can always be
obtained by the rules of the common law.”); 1 SPENCE, supra note 37, at 668–76.
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Constitution may be asserted in a federal court, notwithstanding


the lack of express statutory authority for such relief.53
The availability of such equitable relief, however, is generally
held to be dependent upon the nature and degree of the harm
with which the plaintiff is threatened. Injunctive relief is not
ordinarily available unless the threatened injury to the plaintiff is
irreparable or irreversible.54 Interestingly, most modern theories of
intergenerational responsibility likewise limit the scope of a
generation’s moral or legal duty towards later generations to the
avoidance of irreparable or irreversible harms.55 This principle is
sometimes expressed, especially in the economic literature, in
56
terms of “preservation of options.”

53. See Ex Parte Young, 309 U.S. 123 (1908); Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388, 404 (1971) (Harlan, J., concurring) (acknowledging “the presumed
availability of federal equitable relief against threatened invasions of constitutional
interests”); Davis v. Passman, 442 U.S. 228, 242 (1970) (“[I]t is established practice for this
Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights
safeguarded by the Constitution . . . .”) (citation omitted); Carlson v. Green, 446 U.S. 14, 42
(1980) (Rehnquist, J., dissenting) (“The broad power of federal courts to grant equitable
relief for constitutional violations has long been established.”); PETER W. LOW & JOHN
CALVIN JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 407 (2d
ed. 1989).
54. Parker v. Woolen, 67 U.S. (2 Black) 545, 551 (1862) (“A Court of Equity will interfere
when the injury by the wrongful act of the adverse party will be irreparable, as where the loss
of health . . . the destruction of the means of subsistence, or the ruin of property must
ensue.”); Younger v. Harris, 401 U.S. 37, 43–44 (1971) (equity only provided in event of
irreparable injury and absence of adequate remedy at law); 27A AM. JUR. 2D Equity § 45
(1996).
55. See, e.g., Jeffrey M. Gaba, Environmental Ethics and Our Moral Relationship to Future
Generations: Future Rights and Present Virtue, 24 COLUM. J. ENVTL. L. 249, 251 (1999) (“[T]he
issue of our moral relationship to future generations has a distinct component only for those
actions that have irreversible consequences that will be experienced more than two
generations in the future.”); Ogle, supra note 19, at 3 (“Perhaps only deliberate, significant,
and irreversible impacts to the integrity of the infrastructure of life on earth pass the
threshold for consideration as unconstitutional harm to posterity.”); Schlickeisen, supra note
13, at 196 (proposing a multi-factor constitutional analysis focused on three variables: degree
of impact, degree of reversibility, and degree of government constraint required in order to
assure the desired outcome).
56. See CHRISTOPHER D. STONE, Should We Establish a Guardian for Future Generations, in
SHOULD TREES HAVE STANDING? AND OTHER ESSAYS ON LAW, MORALS AND THE ENVIRONMENT
65, 76 (1996) (explaining “option value” and the “flexibility premium”: “We [the present
generation] bear the costs of postponing development, to ‘purchase’ an option to exploit
the possible benefits of a biological [resource] if, at some later time, with the advance of
knowledge and technology, substantial benefits should materialize.”) (citing Kenneth J.
Arrow & Anthony C. Fisher, Environmental Preservation, Uncertainty, and Irreversibility, 88 Q. J.
ECON. 312 (1974); Anthony C. Fisher & W. Michael Hanemann, Option Value and the
Extinction of Species, 4 ADVANCES IN APPLIED MICRO-ECONOMICS 169 (1986)); Robert E.
Goodin, Ethical Principles for Environmental Protection, in ENVIRONMENTAL PHILOSOPHY: A
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2003] Tommorow’s Standing Today 205

The gravest of irreversible harms appear to be posed by private


and public policies that threaten the complete destruction of
critical natural resources, destruction of the human species, or
permanent reduction in biodiversity (species extinction).57 These
are injuries that will not be remedied with monetary damages; no
amount of money will bring back a lost species, or recharge an
empty aquifer. Such injuries, if they are to be effectively addressed
at all, must be enjoined before they occur.

E. Equity’s Application to Class Action Cases


Courts of equity were historically treated as fora for what today
would be termed “public interest” or “class action” cases.
Blackstone noted that, “Over questions that may be tried at law, in
a great multiplicity of actions, a court of equity assumes
58
jurisdiction, to prevent the expense of endless litigation.” Some
of the earliest equitable class actions involved disputes over the
administration of commonly held natural resources:

COLLECTION OF READINGS 6 (Robert Elliot & Allan Gare eds., 1983) (“[A]ny choice made
now must be made in such a way that . . . a later generation, or the same generation at a later
date, can reverse the choice and return to the original situation.”) (citing DAVID W. PEARCE
ET AL., DECISION MAKING FOR ENERGY FUTURES 26 (1979)).
57. See ROBERT J. GOODLAND ET AL., ENVIRONMENTAL MANAGEMENT IN TROPICAL
AGRICULTURE 207 (1984) (Loss of the world’s biological diversity would be worse than
“energy depletion, economic collapse, limited nuclear war or conquest by a totalitarian
government . . . . As terrible as those catastrophes would be for us, they could be repaid in a
few generations. The one process ongoing . . . that will take millions of years to correct is the
loss of genetic and species diversity by the destruction of natural habitats. This is the folly
our descendants are least likely to forgive us.”) (quoting E.O. Wilson); Benson, supra note 5,
at 188 (proposed intergenerational tort would apply only in case of long-term damage to
vital natural resources—defined as biological diversity, topsoil, water, and air); Just, supra
note 26, at 628 (identifying Endangered Species Act litigation as an especially suitable
context for intergenerational standing in light of the irreparable injuries involved: “[A]ir,
water, and land can arguably be decontaminated and made clean again. However, once a
species is made extinct, it can never be recreated or remade. The damage is irreversible.”).
58. 3 BLACKSTONE, supra note 37, at 735; 1 SPENCE, supra note 37, at 656 (suggesting that
the courts of chancery assumed jurisdiction over cases “where, if the parties were left to
proceed according to the ordinary course of law, and only under such regulations as the
courts of law can impose, the result might be a multiplicity of suits, or a course of uncertain
and vexatious litigation”). But see MCDOWELL, supra note 33, at 10 (“Equity, originally and
historically a power addressed toward individuals, has been stretched to cover entire social
classes.”). McDowell, a staunch opponent of the equitable remedies proscribed by the court
in the Brown v. Board of Education cases, appears to base his individualist view of equity on an
out-of-context remark by Alexander Hamilton in THE FEDERALIST No.78. However, it was no
part of Hamilton’s purpose in that piece to describe the appropriate or typical number of
parties to a case in equity.
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Thus suits were entertained to ascertain and settle the customs of a


manor where they were the subject of dispute; to determine questions
as to right of common and inclosure, liberty of foldage and
pasturage, and common of turbary, and apportionment of
commons. . . . [M]ost of [the bills] were in effect, on behalf of the
body of tenants or copyholders, or others interested in the question,
a proceeding unknown to the common law, where the forms of
59
proceeding only permitted an action against each individual.
More recently, the Supreme Court has confirmed that when the
“public interest is involved in a proceeding” the equitable powers
of the federal district courts “assume an even broader and more
flexible character than when only a private controversy is at
stake.” 60
The posterity claims most likely to be asserted in court will be
class claims, concerning issues of long-term public interest. This is
almost axiomatic, for remote future persons can have no presently
recognizable individuality. The only interests that can be
meaningfully asserted on behalf of such future persons are,
therefore, general communal interests.61

F. Equity’s Application to Trusts and Cases Alleging Waste


Disputes as to trusts, and similar fiduciary relationships, also
62
come within the traditional purview of equity. It is, of course,

59. 1 SPENCE, supra note 37, at 657 (citing Lord Tenham v. Herbert, 2 Atk. 483 (1742),
approved Hanson v. Gardiner, 7 Ves. Jun. 306, 310 (1802)).
60. Porter v. Warner, 328 U.S. 395, 398 (1946); see Virginian Ry. Co. v. System Fed’n, 300
U.S. 515, 552 (1937) (“Courts of equity may, and frequently do, go much farther both to
give and withhold relief in furtherance of the public interest than they are accustomed to go
when only private interests are involved.”); see also Brown v. Bd. of Educ., 349 U.S. 294, 300
(1955) (Brown II)(“Traditionally, equity has been characterized by a practical flexibility in
shaping its remedies and by a facility for adjusting and reconciling public and private
needs.”); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
61. This article takes no position as to the advisability of more individualized posterity
suits—for instance, suits brought on behalf of existing fetuses or embryos. See supra note 2.
For arguments addressing the possible personhood and standing of the conceived unborn,
see Raymond B. Marcin, “Posterity” in the Preamble and a Positivist Pro-life Position, 38 AM. J.
JURIS. 273 (1993); William J. Maledon, Note, The Law and the Unborn Child, 46 NOTRE DAME
LAW. 349 (1971).
62. 3 BLACKSTONE, supra note 37, at 734–35 (identifying trusts as a province of equity and
noting that “of waste and other similar injuries, a court of equity takes a concurrent
cognizance, in order to prevent them by injunction”); 1 SPENCE, supra note 37, at 592 (“The
modern jurisdiction, so exercised, is now generally treated as a mixed jurisdiction,
compounded of the general jurisdiction of the Court of Chancery over trusts, and the
prerogative jurisdiction committed to the Chancellor by the sovereign as parens patriae, he
having in that character a general superintending power over public interests where no
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2003] Tommorow’s Standing Today 207

customary for trustees to concern themselves with the will of past


generations, and the interests of unborn generations. Not
surprisingly, the trust law model and its judicial precedents have
heavily influenced modern intergenerational theory.63
Trust law provides intergenerational justice theorists with some
especially relevant guidelines in the area of standing. Trust courts,
acting in their equitable capacity, have typically employed broad
and flexible standing criteria, particularly in cases involving
incompetent parties. For instance, remainder beneficiaries to
trusts may sue to protect their interests even if those interests have
not yet vested.64 In the case of unborn (including unconceived) or
otherwise incompetent trust beneficiaries, the court will appoint a
guardian or guardians ad litem, to ensure adequate representation
in judicial proceedings.65 Where unborn (including unconceived)
beneficiaries are involved, the rule is well fixed that the court will
not allow termination of a trust, unless the interests of those
“contingent” or “potential” remaindermen have been adequately
represented, through a guardian ad litem or other means, in the
termination hearing.66 If the representative of the unborn,

other person is intrusted with that power.”); 27A AM. JUR. 2D Equity § 6 (“[E]quitable
jurisdiction may be invoked to remedy a breach of fiduciary duty in the absence of an
adequate and complete remedy at law.”).
63. See, e.g., Edith Brown Weiss, The Planetary Trust: Conservation and Intergenerational
Equity, 11 ECOLOGY L.Q. 495, 502–40 (1984) (modeling a proposed intergenerational
planetary trust on the common law charitable trust); REDGWELL, supra note 14.
64. GEORGE TAYLOR BOGERT, TRUSTS AND TRUSTEES § 871 (2d ed. 1982).
65. Id.; Maledon, supra note 61, at 351–54; see, e.g., Du Pont v. Du Pont, 159 A. 841 (Del.
Ch. 1932) (living members of a class could represent possible later born members, but a
guardian must be appointed for those possible unborn beneficiaries where there was no
living member of the class); MINN. STAT. ANN. § 501B.19 (West 2000) (providing that, in
trust litigation, “if an interested person is . . . unborn, unascertained, or a person whose
identity . . . is unknown to the petitioner, the court shall represent that person, unless the
court, upon the application of the trustee or any other interested person, appoints a
guardian ad litem to represent the person”); OHIO REV. CODE ANN. § 2307.13.1 (West 1994)
(trustee may be appointed to represent an unborn given a future interest); WIS. STAT. ANN. §
701.15 (West 2002) (“[I]n a trust proceeding . . . the court may appoint a guardian ad litem
for any person interested who is legally incapacitated, unascertained or unborn if such
person is not already represented by a fiduciary having no adverse interest in the
proceeding. A guardian ad litem may represent 2 or more such persons where they have a
substantially identical interest in the proceeding.”).
66. BOGERT, supra note 64, at § 1007 (citing the following cases where courts refused to
grant termination because of unrepresented unborn trust beneficiaries: Ramage v. First
Farmers & Merchants Nat’l Bank, 30 So. 2d 706 (Ala. 1947); Hills v. Travelers Bank & Trust
Co., 7 A.2d 652 (Conn. 1939); Du Pont v. Equitable Sec. Trust Co., 115 A.2d 482 (Del. Ch.
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contingent beneficiaries to a trust withholds her consent, authority


holds that a trust may be neither amended nor modified.67
These equitable standing principles have been routinely applied
in federal courts as well as state courts. As the D.C. Circuit court
held:
[W]e think basic principles of trust law are in accord with
appointment of a guardian ad litem to represent interests of unborn
or unascertained beneficiaries, for purposes of consent to
modification or revocation of a trust. . . . “Courts of justice as an
incident of their jurisdiction have inherent power to appoint
guardians ad litem.” The efficacy of a guardian ad litem appointed
to protect the interests of unborn persons is no different whether he
be appointed pursuant to statute or the court’s inherent power.
Given such protection, the equitable doctrine of representation
embraces the flexibility, born of convenience and necessity, to act
upon the interests of unborn contingent remaindermen to the same
effect as if they had been sui juris and parties. . . . Though the
persons whose interests the guardian ad litem represents would be
unascertainable as individuals, they are identifiable as a class and
68
their interest, as such, recognizable.
Moreover, a court’s equitable jurisdiction extends to what are
termed “public” or “charitable” trusts, just as to private trusts.69
The Preamble to the U.S. Constitution stands as the most solemn
declaration of a public trust to be found in our entire legal
framework, setting forth as it does “We the People” (of 1788) as
the trust’s creators, the government as trustee, and “ourselves and
our Posterity” as beneficiaries.70 One aspect of this public trust

1955), aff’d 122 A.2d 429 (Del. 1956); In re Rickebach Estate, 34 A.2d 527, 348 Pa. 121
(1943)).
67. In re Schroll, 297 N.W.2d 282 (Minn. 1980); Duffy v. Duffy, 20 S.E.2d 835 (N.C. 1942)
(where trusts created by deed and will and living beneficiaries request termination and
division of property, but guardian ad litem for possible future beneficiaries objects, and
settlors’ purposes were not accomplished, court will not sanction termination).
68. Hatch v. Riggs Nat’l Bank, 361 F.2d 559, 565–66 (D.C. Cir. 1966) (quoting Mabry v.
Scott, 124 P.2d 659, 665 (Cal. Ct. App. 1942)). Compare Roe v. Casey, 464 F. Supp. 483, 486–
87 (E.D. Pa.1978), aff’d 623 F.2d 829 (3d Cir. 1980) (rejecting anti-abortion doctors’ motion
to be appointed as guardians ad litem for unborn children: “we hold that unborn children
(fetuses, embryos) are not persons with a legally protectable interest within the meaning of
Fed. R. Civ. P. 17(c) or 24(a)(2) and, thus, the appointment of guardians ad litem is neither
warranted nor required”).
69. 1 SPENCE, supra note 37, at 587–93 (indicating that this customary jurisdiction was
eventually confirmed by the Statute of Charitable Uses, 43 Eliz. ch. 4).
70. U.S. CONST. pmbl. (“We the People, in Order to . . . promote the general Welfare, . . .
to ourselves and our Posterity, do ordain and establish this Constitution for the United States
of America.”); see BOGERT, supra note 64, at § 370 (“It would seem that a trust to promote
‘social welfare’ or ‘public welfare’ ought to be held charitable since those phrases connote to
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2003] Tommorow’s Standing Today 209

must surely be maintenance of the corpus—the land and resources


that form the nation’s sovereign territory.71 The founders clearly
recognized that posterity is entitled to inherit an undiminished
natural resource heritage, and that the present generation’s
interest in those trust resources is usufructary.72 When a party with
a usufructary interest in property acts to diminish the permanent
value of the property, that party has of course committed waste,
waste being defined as “destruction in lands and tenements. . . . It
is a spoiling of an estate, either in houses, woods or lands, by
demolishing not the temporary profits only, but the very substance
of the thing.” 73
Equity has historically served as the proper forum for cases
74
alleging waste. Since most of the actions brought to protect
posterity’s trust interests will be analogous to actions to enjoin
waste, they should be treated as suits in equity. These cases that
allege waste upon the corpus of a constitutional trust and that seek
to enjoin the mismanagement of the constitutional trust are
therefore “cases . . . in equity arising under the Constitution” for
the purposes of Article III, Section 2. Because they fall under the
purview of that section, the cases are subject to federal court

most persons results likely to be advantageous to the community.”); id. at § 394 (“[T]he
trustee for charity has [a duty] to administer the trust according to its terms . . . [to] protect
and preserve the trust property.”); id. at § 246 (“Trusts are often established or authorized
by statute for the purpose of protecting the property rights of the weak or disabled . . . [T]he
same result is sometimes decreed as to the property of the insane or incompetent, infants
and others whose interests are endangered by their disabilities.”).
71. See Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907) (Holmes, J.) (“[T]he state
has an interest independent of and behind the titles of its citizens, in all the earth and air
within its domain.”); David B. Hunter, An Ecological Perspective on Property: A Call for Judicial
Protection of the Public’s Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311
(1988) (surveying judicial trends extending the application of the conventional public trust
doctrine, limited in the past mainly to water ways and sea shores, to all vital natural
resources); BOGERT, supra note 64, at § 378 (listing allowable purposes of governmental
charitable trusts, and including maintenance of public parks and preservation of natural
scenery). Compare WEISS, supra note 6 (advocating recognition of intergenerational trust in
planetary resources); REDGWELL, supra note 14.
72. See Letter from Thomas Jefferson to James Madison (Sep. 6, 1789), in 15 Boyd, supra
note 29, at 392–98 (“‘that the earth belongs in usufruct to the living’”); Letter from Thomas
Jefferson to John Eppes (June 24, 1813), in 13 id. at 269–70 (“Are [later generations] bound
to . . . consider the preceding generation as having had a right to eat up the whole soil of
their country, in the course of a life . . . ? Every one will say no; that the soil is the gift of
God.”).
73. See 3 BLACKSTONE, supra note 37, at 613–14.
74. Id. (“The courts of equity . . . will grant an injunction to stay waste. . . . This has now
become the usual mode of preventing waste.”).
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jurisdiction, and the future generations on whose behalf the cases


are brought are entitled to standing as beneficiaries under the
traditional equitable principles of trust law.
All of these factors: the presence of fundamental issues of fairness,
the legal incompetence of future generations, the involvement of
crucial unforeseen circumstances, the possibility of irreparable harms
and the need for injunctive relief to prevent those harms, the class
nature of the contemplated actions, and the involvement of a
constitutional public trust and concomitant fiduciary responsibilities,
taken together, support application of the federal equitable power
for the purpose of recognizing posterity’s standing to raise
constitutional claims on its own behalf. In determining which such
claims may be heard, and who may appear on posterity’s behalf, the
federal courts should apply such rules and precedents as are
necessary to achieve a full, complete, and just remedy.75

III. POTENTIAL OBJECTIONS TO STANDING FOR FUTURE


GENERATIONS

A. Are Future Persons “Unreal”?


While the Constitution itself presents no obstacle to posterity
standing (if anything, it seems to call for such standing), there are
legal and philosophic objections that may nonetheless arise. One
such objection—what I will call the “metaphysical” objection—can
be expressed most simply as follows: Since future persons have not
yet been born, they are not yet “real,” and it is therefore
inappropriate to speak of them having “standing,” or bearing
“rights,” or being owed “duties.” 76
In considering this criticism, it is useful to distinguish between
natural persons and jural persons—jural persons being simply
those entities and artificial constructs that the law chooses to treat
as persons for limited purposes. What is, and is not, a “jural

75. 27A AM. JUR. 2D Equity § 3 (“[T]he primary character of equity persists as the
complement of legal jurisdiction, in that it seeks to reach and do complete justice where
courts of law, through the inflexibility of their rules and want of power to adapt their
judgments to the special circumstances of cases, are incompetent so to do.”).
76. See, e.g., Ruth Macklin, Can Future Generations Properly Be Said to Have Rights?, in
RESPONSIBILITIES TO FUTURE GENERATIONS: ENVIRONMENTAL ETHICS 151 (Ernest Partridge
ed., 1980) (future generations have no rights of their own because they are not actual
persons; in order to have rights, one must be sentient).
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2003] Tommorow’s Standing Today 211

person,” is largely a matter of social convenience and preference.


As Christopher Stone remarks in his thoughtful treatment of the
“jural person” phenomenon, “We have been making persons of
children [for some years] although they were not, in law, always
so.” 77 It is only relatively recently that the federal court system
(overcoming longstanding prejudice) has extended jural
personhood to groups from whom it was routinely denied for
centuries: including African Americans, aliens, the mentally ill,
Native Americans, prisoners, and women. Other groups who suffer
from metaphysical disabilities similar to those of future generations
have their desires and standing routinely recognized. The dead are
78
allowed to rise in court every day, yet they are no more “real”
than future persons. As discussed in Section II.F, infra, we have
treated the nonexistent, potential future beneficiaries of private
and charitable trusts as jural persons for centuries. We treat
corporations as persons (and accord them a wide range of
constitutional rights), even though their personhood is more
profoundly counterintuitive than that of any of the other groups
just mentioned.79 Given all these precedents, it is clear that there is
no insuperable barrier preventing us from bestowing jural
personhood on posterity if we should choose to do so.
In evaluating the “metaphysical” objection to posterity standing,
it is also important to keep in mind the fundamental difference
between constitutional interpretation and abstract philosophy. In
constitutional interpretation, the search for an objective,
metaphysical truth is sometimes less relevant than the search for
the subjective intent of the Constitution’s human framers. While
two philosophers might profitably debate the merits of state-
established religion, their legal counterparts have little use for such
a debate, the issue having been effectively settled by the framers
until such time as the First Amendment should be amended.80

77. Should Trees Have Standing?, in STONE supra note 56, at 2.


78. See 2 JAMES M. HENDERSON, PROBATE PRACTICE § 446 (1928) (The executor or the
administrator is “the representative for purposes of administration of the decedent and of all
persons interested in the estate” and can bring a wide variety of survivor suits—including for
past pain and suffering) (emphasis added).
79. See Rosenkranz, supra note 24, at 78 (“The capacity of future generations to sue is no
more anomalous [than that of corporations]. If we were to grant juridical personhood to
future generations it would be only a matter of time before their capacity to sue would be
taken for granted.”).
80. U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . .”).
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Accordingly, as regards the appropriateness of associating


present constitutional rights with persons who do not yet exist, two
very relevant questions are 1) whether the founders themselves
believed that posterity had such rights; and 2) whether the
founders themselves felt that present laws or policies could be
rendered invalid by virtue of violating posterity’s future interests.
The answer to both questions is a simple and unequivocal “yes.” 81
The Virginia Declaration of Rights, enacted in 1776, provided
that “all men are by nature equally free and independent, and have
certain inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest their posterity.” 82
The idea that posterity, as well as the present generation,
possessed such “unalienable” rights found frequent expression in
the debates over ratification of the Constitution. As Noah Webster
explained, “A State can never alienate a natural right—for it cannot
legislate for those who are not in existence.” 83 The principle had
many applications. Webster invoked it in the course of arguments
emphasizing the undesirability of perpetual constitutional
provisions (including perpetual bills of rights).84
In Common Sense, Thomas Paine refuted the notion that any
generation could legitimately establish a hereditary monarchy,
maintaining that such an attempt was an invalid “insult and . . .
imposition on posterity.” 85

81. A thorough survey of the framers’ views on intergenerational rights lies beyond the
scope of this article. The author intends publication of such a survey in the near future. See
John Edward Davidson, The Stewardship Doctrine: Intergenerational Justice in the United
States Constitution, Part II, at http://www.conlaw.org/Intergerational-Intro.htm (last visited
Oct. 22, 2002).
82. VA. CONST. OF 1776 art. 1 (emphasis added); see also id., pmbl. (“A Declaration of
Rights made by the representatives of the good people of Virginia, assembled in full and free
convention; which rights do pertain to them and their posterity, as the basis and foundation of
government.”) (emphasis added).
83. Giles Hickory [Noah Webster] III AMERICAN MAGAZINE (NY) (Feb. 1788), in 2 THE
DEBATE ON THE CONSTITUTION: FEDERALIST AND ANTIFEDERALIST SPEECHES, ARTICLES, AND
LETTERS DURING THE STRUGGLE OVER RATIFICATION 315 (Bernard Bailyn ed., 1993).
84. Giles Hickory [Noah Webster], On the Absurdity of a Bill of Rights (AMERICAN MAGAZINE
Dec., 1787), in 1 id. at 669–70 (“[N]o constitutions, in a free government, can be
unalterable. The present generation have indeed a right to declare what they deem a
privilege; but they have no right to say what the next generation shall deem a privilege.”).
85. PAINE, supra note 3, at 76. The Constitution’s framers conclusively rejected the
intergenerational injustice of hereditary nobility by explicitly prohibiting it. U.S. CONST. art.
I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States . . . .”); U.S. CONST.
art. I, § 10, cl. 1 (“No State shall . . . grant any Title of Nobility.”).
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2003] Tommorow’s Standing Today 213

Thomas Jefferson averred that “no generation can contract debts


greater than may be paid during the course of [its] own
86
existence.” He further asserted “that the earth belongs in usufruct
to the living” 87 and that no generation could validly convey land
titles in perpetuity, and he asked: “Are [later generations] bound
to . . . consider the preceding generation as having had a right to
eat up the whole soil of their country, in the course of a life . . . ?
Every one will say no; that the soil is the gift of God . . . .” 88
89
Jefferson’s opinions on these matters were commonplace and
closely resembled the expressed sentiments of Edmund Burke,90
Plato,91 and others, as well as precepts found in the Bible.92
In short, the framers viewed the concept of present legal rights
93
for future generations to be both fundamental and self-evident.
Contemporary considerations of the matter ought to accord at least
some weight to that original understanding.

86. 15 Boyd, supra note 29, at 393 (emphasis added).


87. Id. at 392; see SIR ROBERT CHAMBERS, 2 A COURSE OF LECTURES ON THE ENGLISH LAW,
DELIVERED AT THE UNIVERSITY OF OXFORD: 1767–1773 85, 85 (Thomas M. Curley ed., 1986)
(defining ‘usufruct’ as “a right to make all the use and profit of a thing that can be made
without injuring the substance of the thing itself”).
88. Letter from Thomas Jefferson to John Eppes, supra note 1, at 272.
89. HERBERT E. SLOAN, PRINCIPLE AND INTEREST: THOMAS JEFFERSON AND THE PROBLEM OF
DEBT 5 (1995) (“[W]hat finally makes Jefferson’s views [on generational sovereignty]
important . . . is not so much that he held them, but that they were widely shared . . . .”).
90. EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 108 (Dolphin 1961)
(“[O]ne of the first and most leading principles on which the commonwealth and the laws
are consecrated is [that] the temporary possessors and life-renters in it [should be mindful]
of what is due to their posterity . . . [and] should not think it among their rights to cut off
the entail or commit waste on the inheritance by destroying at their pleasure the whole
original fabric of society, hazarding to leave to those who come after them a ruin instead of a
habitation . . . .”).
91. PLATO, THE LAWS OF PLATO 323–24 (Thomas L. Pangle trans., 1980)(11:923b) (The
Athenian: “I, at any rate, being the lawgiver, ordain that neither yourselves nor this property
belong to you, but they belong rather to your entire family, both past and future, and that to
an even higher degree the entire family, as well as the property, belong to the city.”).
92. See Leviticus 25:23 (New International Trans.) (“The land must not be sold
permanently, because the land is mine and you are but aliens and my tenants.”).
93. 15 Boyd, supra note 29, at 392 (“I set out on this ground, which I suppose to be self-
evident, ‘that the earth belongs in usufruct to the living.’”) (emphasis added); Letter from Thomas
Jefferson to Thomas Earle (September 24, 1823), in 15 THE WRITINGS OF THOMAS JEFFERSON,
supra note 1, at 470 (“[T]hat one generation of men cannot foreclose or burden [the
earth’s] use to another . . . these are axioms so self-evident that no explanation can make
them plainer.”).
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B. Cases, Controversies, Political Questions, and Injury-In-Fact

1. Injury-In-Fact
Another potential objection to posterity standing concerns the
timing of the injuries that would be alleged. Injuries to remote
future persons will, necessarily, be remote, future injuries. Actions
brought to prevent such injuries will predictably involve a higher
degree of speculation as to harm and causality than actions
brought to prevent or remedy present injuries. Since current rules
of federal standing generally require that claims only be heard if
the injury is “actual and imminent,” as opposed to “conjectural or
hypothetical,” 94 it can be argued that it is unsuitable to bring claims
95
for distant future injuries in the present. If the argument were
accepted, then the judicial injury-in-fact standard would effectively
nullify future generations’ rights.96 By the time a case was ripe for
adjudication, posterity’s harm would often be irreparable, and its
97
case moot.
On the other hand, it can be argued that there should be a much
stronger presumption of injury in certain types of posterity suits.
Because posterity, as a class, includes so many people existing in so
many situations, it is exponentially more likely that one or more of
its members will be adversely affected by, say, the loss of a plant or

94. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 563–64 (1992).
95. See Allen, supra note 24, at 735 (“Scalia’s language requiring that an injury be ‘actual
and imminent’ . . . could be read strictly by the Court to deny standing for those unborn.
While a representative of future generations could prove that a particular agency action
would produce some future harm, persuading the Court that the harm is particularized,
actual, and imminent and not ‘conjectural or hypothetical’ would be difficult.”). See generally
Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91
MICH L. REV. 163 (1992).
96. Rosenkranz, supra note 24, at 104 (“The root of the problem in posterity suits is that
the injury is, by definition, not imminent. The ancient structure of the injunction rule must
be refurbished in twenty-first century decor if the posterity suit is to survive.”).
97. One of the more obvious scenarios posing this dilemma involves the creation, siting,
and storage of nuclear waste. Imagine a containment system for such waste that is certain to
be effective for one hundred years, and that is just as certain to catastrophically fail shortly
thereafter. If no one currently living will be harmed, does that mean that the severe,
foreseeable future harms should be completely impervious to judicial challenge? See Wright,
supra note 13, at 145–46 (delaying litigation until arrival of posterity results in absolute bar to
legal remedy); AUERBACH, supra note 14, at 12 (“[B]y the time future generations suffer [an
actionable] harm at the hands of their ancestors, those ancestors will be beyond the reach of
any court.”).
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animal species than it is that a member of the present generation


will be adversely affected.98
Also, there is reason to question whether the injury-in-fact test in
its standard form should be applied to posterity suits. To
understand why this might be so, we need to re-examine the
original rationale for imposing the standard.

2. Posterity and Justice Scalia


The injury-in-fact element of modern standing doctrine was
developed in large part to serve as a check upon judicial
overreaching. Probably the best known and most ardent modern
exponent of the need for such checks is Justice Antonin Scalia, who
wrote an article on the topic in 1983, before being appointed to the
99
Supreme Court. In that article, Justice Scalia asserts, “[T]he
judicial doctrine of standing is a crucial and inseparable element of
that principle [of separation of powers], whose disregard will
inevitably produce . . . an overjudicialization of the processes of
100
self-governance.”
In Justice Scalia’s view, rigorous adherence to appropriate
standing requirements operates to “restrict courts to their
traditional undemocratic role of protecting individuals and
minorities against impositions of the majority, and [to] exclud[e]
them from the even more undemocratic role of prescribing how
the other two branches should function in order to serve the
interest of the majority itself.” 101

98. See Just, supra note 26, at 625–26 (“[A]lthough [a plaintiff suing on behalf of himself
and her descendants] may be unable to identify concrete plans to visit and observe a species
in his personal capacity, and therefore unable to demonstrate an actual or imminent injury
to himself personally, a court could acknowledge the exponentially higher probability that
members of the class of plaintiff’s descendants—his children, grandchildren, or great
grandchildren, would desire to make such trips and observe such species. Their injury would
be actual or imminent, as they would obviously be precluded from observing such
endangered species if they became extinct before these citizens were born and were able to
observe them.”) Mr. Just goes on to compare futurity’s injury to the “lost opportunity” injury
recognized in Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (plaintiff
demonstrated an injury as the result of being unable to compete for all of the entrance slots
for a medical school). Id. at n.148.
99. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers,
17 SUFFOLK U. L. REV. 881 (1983).
100. Id. at 881.
101. Id. at 894. For a classic analysis of judicial review’s role in the protection of
politically under-represented classes, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A
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With these aims in mind, Justice Scalia emphasizes the


“minimum requirement of injury in fact” 102 and the need for a
103
“distinctive” harm to any would-be plaintiff. He argues that
courts should deny access to parties suing over widely shared public
injuries. Such parties, belonging to the political majority, should
be required to pursue their goals through the political process.
Where there is an opportunity for “democratic debate in which he
may persuade the rest of us . . . there is no reason to remove the
matter from the political process and place it in the courts.” 104
Justice Scalia concludes—somewhat counterintuitively—that
allowing public interest plaintiffs to prosecute their claims would
be anti-majoritarian and anti-republican.105 Instead of opening
their doors to public interest plaintiffs, “the courts need to accord
greater weight . . . to the traditional requirement that the plaintiff’s
alleged injury be a particularized one, which sets him apart from
the citizenry at large.” 106 Justice Scalia’s theory of standing can

THEORY OF JUDICIAL REVIEW 73–104 (1980) (ch. 4, “Policing the Process of Representation:
The Court as Referee”).
102. Scalia, supra note 99, at 885 (citing Warth v. Seldin, 422 U.S. 490, 498–501 (1975)).
103. Id. at 894.
104. Id; see also Futrell, supra note 27, at 55–57 (“‘Our Constitution [is] concerned . . . in
important measure with whether all the people are in fact being represented or rather some
are being unjustly excluded from either the process or the benefits with which the effective
majority has seen fit to favor itself.’ . . . If a group has access to the process and is equipped
to combine with others, then the decision can be left to the political branches of
government.”) (citing John Hart Ely, Toward a Representation–Reinforcing Mode of Judicial
Review, 37 MD. L. REV. 451, 484 (1978)). But see Bruce A. Ackerman, Beyond Carolene Products,
98 HARV. L. REV. 713, 727 (1985) (describing some of the political dynamics which favor
discrete, well-financed, special interest groups, such as industry lobbyists, over more diffused
public interests); Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory
Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 231 n.44 (1986) (discussing
how the ‘free rider’ problem also works against the creation and proper enforcement of
public interest legislation); E. Donald Elliot et al., Toward a Theory of Statutory Evolution: The
Federalization of Environmental Law, J.L. ECON. & ORG. 313, 342 (1985); Sharon M. Kelly, The
Public Trust and the Constitution: Routes to Judicial Overview of Resource Management Decisions in
Virginia, 75 VA. L. REV. 895, 895 (1989) (“Where a strong and vocal minority has a political
advantage over a diffuse majority, decision-making may not be truly democratic.”) (citing
Joseph Sax, The Public Trust Doctrine in Natural Resource Law, 68 MICH. L. REV. 471, 496
(1970)).
105. Compare United States v. Students Challenging Regulatory Agency Procedures, 412
U.S. 669, 688 (1973) (“To deny standing to persons who are in fact injured simply because
many others are also injured, would mean that the most injurious and widespread . . . actions
could be questioned by nobody.”).
106. Scalia, supra note 99, at 881–82; see also Lujan v. Defenders of Wildlife, 504 U.S. 555,
573–74 (1992) (Scalia, J.) (“[A] plaintiff raising only a generally available grievance about
government—claiming only harm to his and every citizen’s interest in proper application of
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perhaps be best understood as a particularized application of what


is generally termed the “political question” doctrine, according to
which courts should refrain from adjudicating abstract questions of
wide public significance, that amount to “generalized
grievances” —those issues being thought to be more appropriately
addressed by the representative branches of government.107
While Justice Scalia’s arguments do not seem, at first blush, to
offer much promise to public interest plaintiffs (he has since
authored several Supreme Court opinions restricting standing for a
variety of environmental and other public interest plaintiffs108), the
underlying logic of his arguments actually supports recognition of
judicial standing for future generations. Because future
generations have no vote, they are not in a position to pursue their
goals through the political process. Future generations are
therefore the quintessential unrepresented “minority,” in need of
judicial protection from impositions of the present political
majority.109

3. Posterity Considered as an Unrepresented Majority


The word “minority” in the previous paragraph has to be placed
inside quotation marks because posterity, despite its present
powerlessness, is actually not a minority at all. Posterity actually

the Constitution and laws, and seeking relief that no more directly and tangibly benefits him
than it does the public at large—does not state an Article III case or controversy.”). Compare
RESTATEMENT (SECOND) OF TORTS § 942 cmt. d (“The public interest may . . . affect the
question of whether a particular plaintiff has standing to sue for an injunction. In case of a
public nuisance, the rule is that one cannot maintain a suit for damages unless his injury was
different in kind from that of other members of the public. This is to avoid the burden on
the court and the harassing effect on the defendant of a multiplicity of suits for small
damages. But if one plaintiff is seeking the remedy of an injunction, this relief may inure to
the benefit of all of the public, and a different rule of standing may be applied.”); id. at cmt.
c; id. at § 821B cmt. i.
107. See Warth v. Seldin, 422 U.S. 490, 499–500 (1975).
108. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 571–78 (1992). But see Fed.
Election Comm’n v. Akins, 524 U.S. 11, 24 (1998) (Court distances itself from the premise
that parties asserting majoritarian interests lack standing simply because their interests are
shared by many other citizens: “[T]he fact that a political forum may be more readily
available where an injury is widely shared . . . does not . . . automatically disqualify an interest
for Article III purposes.”).
109. See Davis v. Passman, 442 U.S. 228, 242 (1979) (“[U]nless [constitutional] rights are
to become merely precatory, the class of those litigants who allege that their own
constitutional rights have been violated, and who at the same time have no effective means
other than the judiciary to enforce these rights, must be able to invoke the existing
jurisdiction of the courts for the protection of their justiciable constitutional rights.”).
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constitutes the majority —albeit the politically unrepresented


majority—of our nation’s community. The number of citizens who
will succeed us vastly exceeds the number existing today (assuming
that the human race does not extinguish itself in the near future).
Ordinarily, when courts employ a too-liberal standing policy or
otherwise show too much zealousness for administering and
correcting legislation, they run the risk of appearing anti-
democratic, or anti-majoritarian. Viewed in the most uncharitable
light, they have the look of an overreaching, unelected elite
invading the appointed sphere of the popularly elected legislative
and executive branches. But when it comes to claims of
intergenerational injustice, it is the judicial choice to remove itself
from the process that would show the greatest disregard for
majority self-rule—the relevant majority being that which has not
yet been born. Posterity has no vote in the election of either
executives or legislators.
Posterity’s status as a majority also means that, in purely
utilitarian terms, harms done to posterity tend to be more serious
than harms effected entirely within a single generation. When
intergenerational harms continue into perpetuity—as in the case
of species extinction/loss of biodiversity—the number of people
harmed, and consequently the overall severity of the harm, is
potentially infinite.

4. Generational Sovereignty as a Standing Consideration


When intergenerational harms—environmental or otherwise—
are serious enough, they can jeopardize society’s capacity for self-
government and unjustifiably restrict future generations’ policy
options. Harms on this scale can be viewed as infringements upon
future generations’ sovereignty. This possibility must be borne in
mind when “separation of powers” arguments are raised in
opposition to posterity standing. While it is wrong for the judicial
branch to unduly infringe upon the prerogatives of the other
independent branches of government, it is just as wrong for the
government of one generation to unduly infringe upon the
sovereign prerogatives of subsequent generations. As Jefferson
once complained, “We seem not to have perceived that, by the law
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of nature, one generation is to another as one independent nation


to another.” 110

5. Posterity and Madison: The Present Generation Considered


as a “Faction”
Were the judiciary to act to protect future generations from
discrimination, it would not thereby violate the framers’ vision of a
republic with separated powers. To the contrary, such an
undertaking would accord handsomely with the founders’
republican spirit. This is because the present generation, viewed as
a whole, constitutes what James Madison termed a “faction.”
“Faction” was Madison’s label for “a number of citizens . . . who
are united and actuated by some common impulse of passion, or of
interest, adverse to the rights of other citizens or to the permanent
111
and aggregate interests of the community.” The present
generation is united in interests adverse to the permanent interests
of the community when, and to the extent that, the present
generation materially benefits from unsustainable consumption,
development, or economic policies that harm later generations.
According to Madison, one of the chief aims of the proposed
Constitution was to limit the ill influence of such factions.112 With
this in mind, he stressed the advantages that the large size of the
United States would afford. Madison claimed that the increase in
territory would lead to a decrease in factionalism: “Extend the
sphere, and you take in a greater variety of parties and interests;
you make it less probable that a majority of the whole will have a
common motive to invade the rights of other citizens.” 113 What that

110. See 15 Boyd, supra note 29, at 395; Gardner, supra note 19, at 59 (“[T]he
constitutional policy of intergenerational fairness is of fundamental, if not singular,
importance and . . . judicial review on the basis of such a policy would be justified. Far from
vitiating the primacy of the principles of government by consent and majority rule . . . [b]y,
in effect, rationing and restricting the decision-making prerogatives of earlier generations,
such a judicial approach would tend to maximize and equalize the prospects for effective
majority rule across a multi-generational expanse of time.”).
111. THE FEDERALIST No. 10, supra note 48, at 78 (James Madison).
112. Id. at 80 (“To secure the public good, and private rights, against the danger of such
a faction, and at the same time to preserve the spirit and form of popular government, is
then the great object to which our inquiries are directed.” Consistent with this object,
Madison prayed for political leaders “whose wisdom may best discern the true interest of
their country, and whose patriotism and love of justice will be least likely to sacrifice it to
temporary or partial considerations.”) (emphasis added).
113. Id; see also THE FEDERALIST No. 51, supra note 48, at 325 (James Madison) (“In the
extended republic of the United States, and among the great variety of interests, parties, and
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argument failed to take into account (because it was not then a


pressing issue) was that no amount of geographic extension would
eliminate temporal factionalism—factions in time. To eliminate
temporal factionalism would require an extension of the temporal
sphere—some mechanism to ensure representation and protection
of other generations’ interests. Without such a mechanism, the
framers’ intent—government that values “permanent and
aggregate interests of the community” over the “temporary or
partial considerations” 114 of a temporal faction—cannot be
achieved.
Of the several branches of government, it is the federal judiciary,
with its tenured lifetime appointments, that will be the least
threatened by any factional retaliation when it acts to protect the
interests of future generations.115 It is therefore appropriate for the
federal judiciary to assume some degree of responsibility for
controlling generational factionalism—just as it accepts
responsibility for policing other types of majority discrimination—
by recognizing intergenerational torts and posterity standing, and
by exercising the power of judicial review to ensure legislation’s
compliance with constitutional standards of intergenerational
equity.
For all of the reasons just listed, posterity plaintiffs are readily
distinguishable from public interest plaintiffs belonging to the
living generation. Existing Supreme Court standing doctrine,
arising as it has exclusively from cases brought by living plaintiffs,
and based entirely upon assumptions regarding living plaintiffs and
their relationships with the various branches of government,
cannot be presumed to apply to the cases and controversies which
will be brought in the future on posterity’s behalf. There will be no
clear holdings to rely upon when the first posterity suit reaches the
Court. It will be a case of first impression, and it will demand a new
constitutional doctrine rooted in a new rationale. The most clearly
applicable models and precedents for the development of such a
doctrine rest in the jurisprudence of equity.

sects which it embraces, a coalition of a majority of the whole society could seldom take place
on any other principles than those of justice and the general good . . . .”).
114. See supra note 110 and accompanying text.
115. See Wright, supra note 13, at 123.
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C. Managing the Floodgates


Most of the other objections likely to be raised to posterity
standing are of the sort that confront any new proposed
application of judicial power. For instance, there will be initial fear
that the doctrine will “open the floodgates” to an unmanageable
tide of frivolous litigation.
While it is to be expected that posterity-brought cases will briefly
surge when the new category of litigation is recognized, the tide
can be expected to dwindle as soon as rules and standards begin to
be generated. As standards and guidelines evolve through judicial
decision, and prospective litigants become better able to predict
the likely outcome of cases, the need to actually litigate those cases
decreases. The guidelines will most likely limit application of the
doctrine to a narrow range of serious, irreparable harms.116 The
core zone of prohibition can accordingly be expected to include
actions and policies that individually or cumulatively threaten
extinction of the human species or other species; permanent
diminution or degradation of water, air, arable soil, or other vital
natural resources; or creation of highly persistent, highly toxic
substances. There may be injuries outside this core zone that will
suffice to trigger judicial oversight and posterity standing; those
determinations will be developed gradually, on a case-by-case basis.
None of the obvious objections to posterity standing seems
compelling when examined closely. The metaphysical objection
that future persons, and their interests, are not yet “real”
contradicts the expressed metaphysics of the founders and ignores
the many other instances where the law grants personhood and
standing to entities even less “real.” Strict enforcement of “actual
and imminent injury-in-fact” standards is inappropriate inasmuch
as the standards were developed to address separation of powers

116. See, e.g., Allen, supra note 24, at 733 (“[I]n cases such as toxic releases, where there
are irreversible and uncertain long-term consequences, the interests of future generations
should be heard . . . [but] [a]ir and water pollution that can be readily remedied should
perhaps be left to present generations to address.”); AUERBACH, supra note 14, at 69 (“Most
contemporary thinkers have abandoned the view that we have an obligation to promote the
good of remote generations in favor of a narrower concern with avoiding actions that might
harm remote generations.”); Gardner, supra note 19, at 53 (An appropriate doctrine “would
not seem to involve an insurmountable dearth of judicially discoverable and manageable
standards.” The standards would rule out some categories of claims, but not others, such as
those based on accumulation of non-degradable wastes or extremely long-lived radio
nuclides.).
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concerns, which have little force in the context of intergenerational


disputes. Fears of unmanageable tides of litigation exaggerate the
impact of a doctrine that will likely be confined to the regulation of
the most egregious instances of generational self-dealing. The
logical and practical shortcomings of a posterity standing policy are
modest, especially when considered in light of the permanent,
severe, and irreparable harms that have already occurred and that
are likely to continue to occur in the absence of adequate
mechanisms for asserting and protecting posterity’s interests.

CONCLUSION

Our society presently pursues a number of policies that


discriminate against the interests of future generations. Such
policies are ethically and legally unacceptable. The language of the
Constitution and the sentiments of the Constitution’s framers
provide adequate legal grounds for curbing this generationally
selfish behavior.
In order for the constitutional mandate for intergenerational
equity to be effectively enforced, it will be necessary in some
circumstances for representatives of posterity to bring legal actions
on posterity’s behalf. Both the representatives’ legal standing and
the jurisdiction of the federal courts to hear such actions can be
derived from Article III, Section 2’s extension of the judicial power
to cases arising in equity under the Constitution. Posterity standing is
consistent with equity’s traditional provision of standing for legal
incompetents. The finding of federal court jurisdiction also follows
from the traditional application of equity to cases involving
circumstances unforeseen by legislators, matters of trust and
property, irreparable harms, multiple plaintiffs, and pleas for
injunctive relief.
Although there are several potential objections to posterity
standing, none of them are compelling. The fact that future
persons do not yet exist does not preclude them from being the
beneficiaries of constitutional protection; the founders recognized
that future persons had rights that limited the legitimate range of
conduct of present governments and individuals. Worries over
counter-majoritarian judicial activism are misplaced in the
intergenerational context, because posterity is itself an
unrepresented majority. Strict “injury-in-fact” standing
requirements, which were developed to curb counter-majoritarian
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judicial activism, are therefore inapplicable to suits brought on


behalf of future generations. Posterity standing is to be
determined under the more lenient precedents and standards of
equity, which are designed to ensure, above all else, that the
interests of justice are served.
There is nothing to prevent us from honoring our descendants
or hearing their claims. Both our Constitution and our collective
conscience require this of us.
To hear them, we need only decide to listen.