The metrics of constitutional amendments: And why proposed evironmental quality amendments don't measure up

Notre Dame Law Review

Volumn 74, Issue 2, 1999, Pages 245-280

  Ruhl, J B ^a,b  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b SOUTHERN ILLINOIS UNIVERSITY   (United States)

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EID: 84873958390     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (187)

1. A joke told to me by the Bulgarian jurist and scholar Ewa Letowska.
2. As John Hart Ely observed, the general approach of the Constitution is "not one of trying to set forth some governing ideology . . . but rather one of ensuring a durable structure for the ongoing resolution of policy disputes." JOHN HART ELY, DE NOTRE DAME LAW REVIEW [VOL. 74:2 MOCRACY AND DISTRUST 90 (1980). See also Laurence H. Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97 HARV. L. REV. 433, 441 (1983) ("The Constitution serves both as a blueprint for government operations and as an authoritative statement of the nation's most important and enduring values.").
3. As John Hart Ely observed, the general approach of the Constitution is "not one of trying to set forth some governing ideology . . . but rather one of ensuring a durable structure for the ongoing resolution of policy disputes." JOHN HART ELY, DE NOTRE DAME LAW REVIEW [VOL. 74:2 MOCRACY AND DISTRUST 90 (1980). See also Laurence H. Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97 HARV. L. REV. 433, 441 (1983) ("The Constitution serves both as a blueprint for government operations and as an authoritative statement of the nation's most important and enduring values.").
4. In the last century, for example, only one amendment designed overtly to prescribe social policy has been ratified, see U.S. CONST, amend. XVIII, and it was subsequently repealed, see U.S. CONST, amend. XXI. The remaining amendments ratified during that period concern voting rights or purely constitutive issues. See infra text accompanying notes 29-54.
5. See DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS 425 (1996) ("[A] bevy of amendments, designed as much to articulate a position as to achieve adoption, would flourish in the 1980s when striking a constitutional posture became a popular means of dealing with besetting problems of government.").
6. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
7. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
8. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
9. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
10. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
11. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
12. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
13. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
14. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
15. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
16. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
17. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
18. Besides the environmental quality amendment proposals that provide the case study for this Article, examples of recent social policy amendment proposals that have received serious attention include: (1) the religious equality amendment, see Bruce E. Lowry, Jr., The New Discrimination in America: In Defense of the Religious Equality Amendment, 16 ST. LOUIS U. PUB. L. REV. 205 (1996); (2) the school prayer amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 YALE L.J. 1631 (1986); Robert S. Peck, The Threat to the American Idea of Religious Liberty, 46 MERCER L. REV. 1123 (1995); Geoffrey R. Stone, In Opposition to the School Prayer Amendment, 50 U. GHI. L. REV. 823 (1983); (3) the crime victims' rights amendment, see Sue Anna Moss Cellini, The Proposed Victims' Rights Amendment to the Constitution of the United States: Opening the Door of the Criminal Justice System to the Victim, 14 ARIZ. J. INT'L &: COMP. L. 839 (1997); (4) the flag burning amendment, see Frank Michelmen, Saving Old Glory: On Constitutional Iconography, 42 STAN. L. REV. 1337 (1990); (5) the human life amendment banning abortions, see David Westfall, Beyond Abortion: The Potential Reach of a Human Life Amendment, 8 AM. J.L. & MED. 97 (1982); and (6) the Equal Rights Amendment, see MARY FRANCES BERRY, WHY ERA FAILED (1986); JANE J. MANSBRIDGE, WHY WE LOST THE ERA (1986). A number of recent amendment proposals address the mechanics of government, particularly Congress, and thus are more consistent with the "operating software" function of the Constitution. These include: (1) a congressional term limits amendment, see J. Richard Brown, Coming to Terms with Congress: A Defense of Congressional Term Limits, 22 CAP. U. L. REV. 1095 (1993); (2) the fiscal super-majority rule amendment, see Michael B. Rappaport, Amending the Constitution to Establish Fiscal Superinajority Rules, 13 J.L. & POL. 705 (1997); (3) the amendment to prohibit unfunded mandates, see Paul Gillmor & Fred Eames, Reconstruction of Federalism: A Constitutional Amendment to Prohibit Unfunded Mandates, 31 HARV. J. ON LEGIS. 395 (1994); and (4) the balanced budget amendment, see E. Donald Elliott, Constitutional Conventions and the Deficit, 1985 DUKE L.J. 1077.
19. Typical of amendment resolutions introduced in Congress during that period was one purporting to protect "[t]he right of the people to clean air, pure water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of the environment. . . ." H.R.J. Res. 1321, 90th Cong., 2d Sess. (1968). For summaries of this and other early EQA proposals, see J. William Futrell, Environmental Rights and the Constitution, in AMERICAN LAW INSTITUTE-AMERICAN BAR ASSOCIATION, BLESSINGS OF LIBERTY 43, 50 (1988); Pamela B. Schmaltz, Is It Time for an Environmental Amendment?, 38 LOY. L. REV. 451, 461-62 (1993).
20. Typical of amendment resolutions introduced in Congress during that period was one purporting to protect "[t]he right of the people to clean air, pure water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of the environment. . . ." H.R.J. Res. 1321, 90th Cong., 2d Sess. (1968). For summaries of this and other early EQA proposals, see J. William Futrell, Environmental Rights and the Constitution, in AMERICAN LAW INSTITUTE-AMERICAN BAR ASSOCIATION, BLESSINGS OF LIBERTY 43, 50 (1988); Pamela B. Schmaltz, Is It Time for an Environmental Amendment?, 38 LOY. L. REV. 451, 461-62 (1993).
21. For a first-hand account of the events leading to Earth Day 1970 by the founder of the idea, see Milo Mason, Interview: Gaylord Nelson, NAT. RESOURCES & ENV'T, Summer 1995, at 72. The growing public mood in favor of environmental regulation may have spawned the first EQAs, but was far more pivotal in ushering in the federal statutory program of the 1970s. See J. William Futrell, The History of Environmental Law, in ENVIRONMENTAL LAW INSTITUTE, ENVIRONMENTAL LAW FROM RESOURCES TO RECOVERY §1.2(H)(2), at 40 (1993); PETER C. YEAGER, THE LIMITS OF LAW: THE PUBLIC REGULATION OF PRIVATE POLLUTION 99-110 (1991) (tracing the surge in public mood and concluding that "the growing environmental movement was to stimulate relatively radical changes in law, most notably at the federal level"); Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, NAT. RESOURCES & ENV'T, Fall 1995, at 3-4 (describing public mood as a critical factor in the enactment of the National Environmental Policy Act); C. Peter Gopelrud III, Water Pollution Law: Milestones from the Past and Anticipation of the Future, NAT. RESOURCES & ENV'T, Fall 1995, at 7, 8 (describing public mood as a critical factor in the enactment of the Clean Water Act).
22. For a first-hand account of the events leading to Earth Day 1970 by the founder of the idea, see Milo Mason, Interview: Gaylord Nelson, NAT. RESOURCES & ENV'T, Summer 1995, at 72. The growing public mood in favor of environmental regulation may have spawned the first EQAs, but was far more pivotal in ushering in the federal statutory program of the 1970s. See J. William Futrell, The History of Environmental Law, in ENVIRONMENTAL LAW INSTITUTE, ENVIRONMENTAL LAW FROM RESOURCES TO RECOVERY §1.2(H)(2), at 40 (1993); PETER C. YEAGER, THE LIMITS OF LAW: THE PUBLIC REGULATION OF PRIVATE POLLUTION 99-110 (1991) (tracing the surge in public mood and concluding that "the growing environmental movement was to stimulate relatively radical changes in law, most notably at the federal level"); Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, NAT. RESOURCES & ENV'T, Fall 1995, at 3-4 (describing public mood as a critical factor in the enactment of the National Environmental Policy Act); C. Peter Gopelrud III, Water Pollution Law: Milestones from the Past and Anticipation of the Future, NAT. RESOURCES & ENV'T, Fall 1995, at 7, 8 (describing public mood as a critical factor in the enactment of the Clean Water Act).
23. For a first-hand account of the events leading to Earth Day 1970 by the founder of the idea, see Milo Mason, Interview: Gaylord Nelson, NAT. RESOURCES & ENV'T, Summer 1995, at 72. The growing public mood in favor of environmental regulation may have spawned the first EQAs, but was far more pivotal in ushering in the federal statutory program of the 1970s. See J. William Futrell, The History of Environmental Law, in ENVIRONMENTAL LAW INSTITUTE, ENVIRONMENTAL LAW FROM RESOURCES TO RECOVERY §1.2(H)(2), at 40 (1993); PETER C. YEAGER, THE LIMITS OF LAW: THE PUBLIC REGULATION OF PRIVATE POLLUTION 99-110 (1991) (tracing the surge in public mood and concluding that "the growing environmental movement was to stimulate relatively radical changes in law, most notably at the federal level"); Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, NAT. RESOURCES & ENV'T, Fall 1995, at 3-4 (describing public mood as a critical factor in the enactment of the National Environmental Policy Act); C. Peter Gopelrud III, Water Pollution Law: Milestones from the Past and Anticipation of the Future, NAT. RESOURCES & ENV'T, Fall 1995, at 7, 8 (describing public mood as a critical factor in the enactment of the Clean Water Act).
24. For a first-hand account of the events leading to Earth Day 1970 by the founder of the idea, see Milo Mason, Interview: Gaylord Nelson, NAT. RESOURCES & ENV'T, Summer 1995, at 72. The growing public mood in favor of environmental regulation may have spawned the first EQAs, but was far more pivotal in ushering in the federal statutory program of the 1970s. See J. William Futrell, The History of Environmental Law, in ENVIRONMENTAL LAW INSTITUTE, ENVIRONMENTAL LAW FROM RESOURCES TO RECOVERY §1.2(H)(2), at 40 (1993); PETER C. YEAGER, THE LIMITS OF LAW: THE PUBLIC REGULATION OF PRIVATE POLLUTION 99-110 (1991) (tracing the surge in public mood and concluding that "the growing environmental movement was to stimulate relatively radical changes in law, most notably at the federal level"); Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, NAT. RESOURCES & ENV'T, Fall 1995, at 3-4 (describing public mood as a critical factor in the enactment of the National Environmental Policy Act); C. Peter Gopelrud III, Water Pollution Law: Milestones from the Past and Anticipation of the Future, NAT. RESOURCES & ENV'T, Fall 1995, at 7, 8 (describing public mood as a critical factor in the enactment of the Clean Water Act).
25. For a first-hand account of the events leading to Earth Day 1970 by the founder of the idea, see Milo Mason, Interview: Gaylord Nelson, NAT. RESOURCES & ENV'T, Summer 1995, at 72. The growing public mood in favor of environmental regulation may have spawned the first EQAs, but was far more pivotal in ushering in the federal statutory program of the 1970s. See J. William Futrell, The History of Environmental Law, in ENVIRONMENTAL LAW INSTITUTE, ENVIRONMENTAL LAW FROM RESOURCES TO RECOVERY §1.2(H)(2), at 40 (1993); PETER C. YEAGER, THE LIMITS OF LAW: THE PUBLIC REGULATION OF PRIVATE POLLUTION 99-110 (1991) (tracing the surge in public mood and concluding that "the growing environmental movement was to stimulate relatively radical changes in law, most notably at the federal level"); Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, NAT. RESOURCES & ENV'T, Fall 1995, at 3-4 (describing public mood as a critical factor in the enactment of the National Environmental Policy Act); C. Peter Gopelrud III, Water Pollution Law: Milestones from the Past and Anticipation of the Future, NAT. RESOURCES & ENV'T, Fall 1995, at 7, 8 (describing public mood as a critical factor in the enactment of the Clean Water Act).
26. Described as the "explosion of environmental law," from 1970 through 1976, in quick order Congress newly enacted or substantially amended ten major environmental regulation statutes covering air, water, and land pollution, project planning, workplace safety, manufacturing, species protection, and public drinking water. See Futrell, supra note 7, §1.2(I)(1)-(3), at 43-45 (collecting statutes); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION 106-10 (2d ed. 1996) (same). That record was nearly duplicated during the same period in the field of natural resources protection. See Futrell, supra note 7, § 1.2(I)(3), at 48 (collecting statutes). The process continued into the 1980s, albeit at a slower pace. See PERCIVAL, supra, at 111-12 (collecting statutes). Some laws were changed more than once in this period, each time boosting the degree of federal dominance. See John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183, 1183-85 (tracing changes to federal air pollution control legislation).
27. Described as the "explosion of environmental law," from 1970 through 1976, in quick order Congress newly enacted or substantially amended ten major environmental regulation statutes covering air, water, and land pollution, project planning, workplace safety, manufacturing, species protection, and public drinking water. See Futrell, supra note 7, §1.2(I)(1)-(3), at 43-45 (collecting statutes); ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION 106-10 (2d ed. 1996) (same). That record was nearly duplicated during the same period in the field of natural resources protection. See Futrell, supra note 7, § 1.2(I)(3), at 48 (collecting statutes). The process continued into the 1980s, albeit at a slower pace. See PERCIVAL, supra, at 111-12 (collecting statutes). Some laws were changed more than once in this period, each time boosting the degree of federal dominance. See John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183, 1183-85 (tracing changes to federal air pollution control legislation).
28. See Futrell, supra note 6, at 50; Schmaltz, supra note 6, at 462.
29. The nation's largest environmental group, the National Wildlife Federation, proposed an EQA in the 1980s, see Futrell, supra note 6, at 51, but other than that "[t]he idea of an environmental amendment has lain dormant for twenty years and is only now gathering steam." Schmaltz, supra note 6, at 462 n.70.
30. See Schmaltz, supra note 6, at 464-67 (summarizing proposals, and making one too).
31. See Richard L. Brodsky & Richard L. Russman, A Constitutional Initiative, DEFENDERS, Fall 1996, at 37 (two state legislators lay out their plan for the EQA); see also Roger Schlickeisen, Epilogue: The Argument for a Constitutional Amendment to Protect Living Nature, in BIODIVERSITY AND THE LAW 221-42 (William J. Snape ed., 1996) (outlining the case for an EQA).
32. See Richard L. Brodsky & Richard L. Russman, A Constitutional Initiative, DEFENDERS, Fall 1996, at 37 (two state legislators lay out their plan for the EQA); see also Roger Schlickeisen, Epilogue: The Argument for a Constitutional Amendment to Protect Living Nature, in BIODIVERSITY AND THE LAW 221-42 (William J. Snape ed., 1996) (outlining the case for an EQA).
33. Brodsky & Russman, supra note 12, at 37. Resolutions requesting the United States Congress to submit this EQA language to the states have been introduced in a number of states, albeit none with success. See, e.g., Md. H.J.R. 2 (1997); N.H. S.J.R. 3 (1997); N.J. A.C.R. 38 (1998); Tex. H.C.R. 13 (1997); Va. S.J.R. 230 (1996); Wis. A.J.R. 35 (1997). Schlickeisen's EQA proposal also emphasizes intergenerational rights, but limits the effect to living natural resources: The living natural resources in the United States are the common property of all the people, including generations yet to come. All persons and their progeny have an inalienable, enforceable right to the benefits of those resources for themselves and their posterity. The United States and every State shall ensure assure that the use of those resources is sustainable and that they are conserved and maintained for the benefit of all the people. Schlickeisen, supra note 12, at 243.
34. See, e.g., Eric T. Freyfogle, Essay on Bill of Rights: Should We Green the Bill?, 1992 U. ILL. L. REV. 159; Roger Schlickeisen, Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL. ENVTL. L.J. 181 (1994). Biodiversity is "[t]he variety of organisms considered at all levels, from genetic variants to the same species through arrays of species to arrays of genera, families, and still higher taxonomic levels." EDWARD O. WILSON, THE DIVERSITY OF LIFE 393 (1992). See also Convention on Biological Diversity, 31 I.L.M. 818, 823 (1992) (defining biological diversity as "the variability among living organisms . . . includ[ing] diversity within species, between species and of ecosystems"); UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THREATS TO BIOLOGICAL DIVERSITY IN THE UNITED STATES 10 (1990) (biological diversity "is the variety of life on all levels of organization, represented by the number and relative frequencies of items").
35. See, e.g., Eric T. Freyfogle, Essay on Bill of Rights: Should We Green the Bill?, 1992 U. ILL. L. REV. 159; Roger Schlickeisen, Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL. ENVTL. L.J. 181 (1994). Biodiversity is "[t]he variety of organisms considered at all levels, from genetic variants to the same species through arrays of species to arrays of genera, families, and still higher taxonomic levels." EDWARD O. WILSON, THE DIVERSITY OF LIFE 393 (1992). See also Convention on Biological Diversity, 31 I.L.M. 818, 823 (1992) (defining biological diversity as "the variability among living organisms . . . includ[ing] diversity within species, between species and of ecosystems"); UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THREATS TO BIOLOGICAL DIVERSITY IN THE UNITED STATES 10 (1990) (biological diversity "is the variety of life on all levels of organization, represented by the number and relative frequencies of items").
36. See, e.g., Eric T. Freyfogle, Essay on Bill of Rights: Should We Green the Bill?, 1992 U. ILL. L. REV. 159; Roger Schlickeisen, Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL. ENVTL. L.J. 181 (1994). Biodiversity is "[t]he variety of organisms considered at all levels, from genetic variants to the same species through arrays of species to arrays of genera, families, and still higher taxonomic levels." EDWARD O. WILSON, THE DIVERSITY OF LIFE 393 (1992). See also Convention on Biological Diversity, 31 I.L.M. 818, 823 (1992) (defining biological diversity as "the variability among living organisms . . . includ[ing] diversity within species, between species and of ecosystems"); UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THREATS TO BIOLOGICAL DIVERSITY IN THE UNITED STATES 10 (1990) (biological diversity "is the variety of life on all levels of organization, represented by the number and relative frequencies of items").
37. See, e.g., Eric T. Freyfogle, Essay on Bill of Rights: Should We Green the Bill?, 1992 U. ILL. L. REV. 159; Roger Schlickeisen, Protecting Biodiversity for Future Generations: An Argument for a Constitutional Amendment, 8 TUL. ENVTL. L.J. 181 (1994). Biodiversity is "[t]he variety of organisms considered at all levels, from genetic variants to the same species through arrays of species to arrays of genera, families, and still higher taxonomic levels." EDWARD O. WILSON, THE DIVERSITY OF LIFE 393 (1992). See also Convention on Biological Diversity, 31 I.L.M. 818, 823 (1992) (defining biological diversity as "the variability among living organisms . . . includ[ing] diversity within species, between species and of ecosystems"); UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THREATS TO BIOLOGICAL DIVERSITY IN THE UNITED STATES 10 (1990) (biological diversity "is the variety of life on all levels of organization, represented by the number and relative frequencies of items").
38. Conservation biology has emerged as a biological sciences discipline largely in the past decade, as traced by its chief literature and research outlet, the journal Conservation Biology. A focal point of conservation biology research has been to demonstrate the often pernicious effects of habitat fragmentation and loss of species. The focus of scientific research geared towards ecosystem-level dynamics has revealed the dramatic impacts that habitat loss has had on biodiversity generally. See, e.g., UNITED STATES DEPARTMENT OF THE INTERIOR, OUR LIVING RESOURCES (1996); U.S. Dep't of the Interior/National Biological Service, Biological Rep. 28, Endangered Ecosystems of the United States: A Preliminary Assessment of Loss and Degradation (U.S. Dep't of the Interior/National Biological Service) (1995); Scott K. Robinson et al., Regional Forest Fragmentation and the Nesting Success of Migratory Birds, SCIENCE, Mar. 31, 1995, at 1987.
39. Conservation biology has emerged as a biological sciences discipline largely in the past decade, as traced by its chief literature and research outlet, the journal Conservation Biology. A focal point of conservation biology research has been to demonstrate the often pernicious effects of habitat fragmentation and loss of species. The focus of scientific research geared towards ecosystem-level dynamics has revealed the dramatic impacts that habitat loss has had on biodiversity generally. See, e.g., UNITED STATES DEPARTMENT OF THE INTERIOR, OUR LIVING RESOURCES (1996); U.S. Dep't of the Interior/National Biological Service, Biological Rep. 28, Endangered Ecosystems of the United States: A Preliminary Assessment of Loss and Degradation (U.S. Dep't of the Interior/National Biological Service) (1995); Scott K. Robinson et al., Regional Forest Fragmentation and the Nesting Success of Migratory Birds, SCIENCE, Mar. 31, 1995, at 1987.
40. Conservation biology has emerged as a biological sciences discipline largely in the past decade, as traced by its chief literature and research outlet, the journal Conservation Biology. A focal point of conservation biology research has been to demonstrate the often pernicious effects of habitat fragmentation and loss of species. The focus of scientific research geared towards ecosystem-level dynamics has revealed the dramatic impacts that habitat loss has had on biodiversity generally. See, e.g., UNITED STATES DEPARTMENT OF THE INTERIOR, OUR LIVING RESOURCES (1996); U.S. Dep't of the Interior/National Biological Service, Biological Rep. 28, Endangered Ecosystems of the United States: A Preliminary Assessment of Loss and Degradation (U.S. Dep't of the Interior/National Biological Service) (1995); Scott K. Robinson et al., Regional Forest Fragmentation and the Nesting Success of Migratory Birds, SCIENCE, Mar. 31, 1995, at 1987.
41. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
42. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
43. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
44. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
45. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
46. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL
47. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
48. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
49. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
50. See Holly Doremus, Patching the Ark: Improving Legal Protection of Biological Diversity, 18 ECOLOGY L.Q. 265 (1991); James Drodzdowski, Saving an Endangered Act: The Case for a Biodiversity Approach to ESA Conservation Efforts, 45 CASE W. RES. L. REV. 553 (1995); Oliver A. Houck, On the Law of Biodiversity and Ecosystem Management, 81 MINN. L. REV. 869, 959 (1997); J. B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Nonfederal Lands: Time for Something Completely Different?, 66 U. COLO. L. REV. 555 (1995). For a summary of the ecosystem management and biodiversity conservation policy formulation initiatives of eighteen federal agencies, see CONGRESSIONAL RESEARCH SERVICE, ECOSYSTEM MANAGEMENT: FEDERAL AGENCY ACTIVITIES, CRS Rep. No. 94-339 (1994). Ecosystem management and biodiversity conservation are now standard fare of environmental groups' policy proposals. See, e.g., BIODIVERSITY AND THE LAW, supra note 12 ("The assumption in this book is that biodiversity, and lots of it, should be conserved and preserved by law."); THE KEYSTONE CENTER, THE KEYSTONE CENTER DIALOGUE ON ECOSYSTEM MANAGEMENT (1996); STEVEN YAFFEE ET AL., THE WILDERNESS SOCIETY, ECOSYSTEM MANAGEMENT IN THE UNITED STATES (1996). For differing views on this new paradigm of conservation policy, compare R. Edward Grumbine, What Is Ecosystem Management, 8 CONSERVATION BIOLOGY 27 (1994) (advocating movement towards this approach) and R. Edward Grumbine, Reflections on "What is Ecosystem Management," 11 CONSERVATION BIOLOGY 41 (1997) (same), with Rebecca W. Thomson, "Ecosystem Management" Great Idea, But What Is It, Will It Work, and Who Will Pay?, NAT. RESOURCES & ENV'T, Winter 1995, at 42 (pointing out difficulties of the approach).
51. I do not intend to debate it at length here. To be sure, whether the proposed EQA would fare well under the evaluative standards I propose herein for constitutional amendments may tell us something about how well it would work on behalf of the environmental protection goals it espouses, as it may be that an amendment that fares poorly under my criteria would not likely achieve its normative objectives. But it is possible for an amendment effectively to achieve its normative goals and nonethe-less pose serious concerns with respect to constitutional integrity. My focus thus is strictly on how the EQA and other amendment proposals can be evaluated with reference to the Constitution as an institution. For a brief discussion of the EQA in that regard, see J. B. Ruhl, An Environmental Rights Amendment: Good Message, Bad Idea, 11 NAT. RESOURCES & ENV'T, Winter 1997, at 46.
52. See JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-1995, ix-xi, 363-80 (1996) (collating proposals by year); RICHARD B. BERNSTEIN & JEROME AGEL, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION So MUCH, WHY Do WE KEEP TRYING TO CHANGE IT? 169 (1993); Ruth B. Ginsburg, On Amending the Constitution: A Plea for Patience, 12 U. ARK. LITTLE ROCK L.J. 677, 681-92 (1990).
53. See JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-1995, ix-xi, 363-80 (1996) (collating proposals by year); RICHARD B. BERNSTEIN & JEROME AGEL, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION So MUCH, WHY Do WE KEEP TRYING TO CHANGE IT? 169 (1993); Ruth B. Ginsburg, On Amending the Constitution: A Plea for Patience, 12 U. ARK. LITTLE ROCK L.J. 677, 681-92 (1990).
54. See JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-1995, ix-xi, 363-80 (1996) (collating proposals by year); RICHARD B. BERNSTEIN & JEROME AGEL, AMENDING AMERICA: IF WE LOVE THE CONSTITUTION So MUCH, WHY Do WE KEEP TRYING TO CHANGE IT? 169 (1993); Ruth B. Ginsburg, On Amending the Constitution: A Plea for Patience, 12 U. ARK. LITTLE ROCK L.J. 677, 681-92 (1990).
55. I refer, of course, to the Eighteenth Amendment and the era of Prohibition it imposed. For a thorough discussion of the rise and fall of national prohibition and the constitutional issues surrounding the adoption and repeal of the Eighteenth Amendment, see Thomas E. Heard, Proposed Constitutional Amendments as a Research Tool: The Example of Prohibition, 84 LAW LIBR. J. 499 (1992).
56. See U.S. CONST, art. V. For discussions of the Article V amending procedures as an obstacle to new amendments, see RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION]; JOHN R. VILE, CONSTITUTIONAL CHANGE IN THE UNITED STATES 1-13 (1994); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111 (1993); Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983);
57. See U.S. CONST, art. V. For discussions of the Article V amending procedures as an obstacle to new amendments, see RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION]; JOHN R. VILE, CONSTITUTIONAL CHANGE IN THE UNITED STATES 1-13 (1994); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111 (1993); Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983);
58. See U.S. CONST, art. V. For discussions of the Article V amending procedures as an obstacle to new amendments, see RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION]; JOHN R. VILE, CONSTITUTIONAL CHANGE IN THE UNITED STATES 1-13 (1994); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111 (1993); Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983);
59. See U.S. CONST, art. V. For discussions of the Article V amending procedures as an obstacle to new amendments, see RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION]; JOHN R. VILE, CONSTITUTIONAL CHANGE IN THE UNITED STATES 1-13 (1994); Donald J. Boudreaux & A.C. Pritchard, Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111 (1993); Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983);
60. Kris W. Kobach, Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971 (1994). For a survey of procedures for amending various state and national constitutions, see Elai Katz, On Amending Constitutions: The Legality and Legitimacy of Constitutional Entrenchment, 29 COLUM. J.L. & Soc. PROBS. 251 (1996).
61. Kris W. Kobach, Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971 (1994). For a survey of procedures for amending various state and national constitutions, see Elai Katz, On Amending Constitutions: The Legality and Legitimacy of Constitutional Entrenchment, 29 COLUM. J.L. & Soc. PROBS. 251 (1996).
62. Although the Founders devoted considerable debate to the amending procedure, including whether there should be any accommodation for amendment, see Brannon P. Denning, Means to Amend: Theories of Constitutional Change, 65 TENN. L. REV. 155, 160-75 (1997); Sanford Levinson, "Veneration" and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment, 21 TEX. TECH. L. REV. 2443 (1990), virtually none of the ratifying debates focused on what kind of amendment would be appropriate. Similarly, the focus on institutional fit, rather than Article V procedural issues or a proposal's normative merit, is not common in the modern constitutional law literature. An exception is an ongoing effort by one legal organization to establish evaluative standards for constitutional amendments that blends institutional, procedural, and normative criteria. See Citizens for the Constitution, "Great and Extraordinary Occasions": Developing Standards for Constitutional Change (1997 final draft on file with author) [hereinafter Developing Standards].
63. Although the Founders devoted considerable debate to the amending procedure, including whether there should be any accommodation for amendment, see Brannon P. Denning, Means to Amend: Theories of Constitutional Change, 65 TENN. L. REV. 155, 160-75 (1997); Sanford Levinson, "Veneration" and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment, 21 TEX. TECH. L. REV. 2443 (1990), virtually none of the ratifying debates focused on what kind of amendment would be appropriate. Similarly, the focus on institutional fit, rather than Article V procedural issues or a proposal's normative merit, is not common in the modern constitutional law literature. An exception is an ongoing effort by one legal organization to establish evaluative standards for constitutional amendments that blends institutional, procedural, and normative criteria. See Citizens for the Constitution, "Great and Extraordinary Occasions": Developing Standards for Constitutional Change (1997 final draft on file with author) [hereinafter Developing Standards].
64. Although the Founders devoted considerable debate to the amending procedure, including whether there should be any accommodation for amendment, see Brannon P. Denning, Means to Amend: Theories of Constitutional Change, 65 TENN. L. REV. 155, 160-75 (1997); Sanford Levinson, "Veneration" and Constitutional Change: James Madison Confronts the Possibility of Constitutional Amendment, 21 TEX. TECH. L. REV. 2443 (1990), virtually none of the ratifying debates focused on what kind of amendment would be appropriate. Similarly, the focus on institutional fit, rather than Article V procedural issues or a proposal's normative merit, is not common in the modern constitutional law literature. An exception is an ongoing effort by one legal organization to establish evaluative standards for constitutional amendments that blends institutional, procedural, and normative criteria. See Citizens for the Constitution, "Great and Extraordinary Occasions": Developing Standards for Constitutional Change (1997 final draft on file with author) [hereinafter Developing Standards].
65. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
66. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
67. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
68. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
69. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
70. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
71. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
72. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
73. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
74. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
75. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states
76. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
77. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
78. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
79. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
80. This is as good a point as any to acknowledge that many states and other nations have a constitutional provision that guarantees some form of environmental rights; however, for the most part "[t]hey are more expressive of a sentimental urge than an exercise in rearranging power," and "[t]he experience . . . suggests that they have not been important legal tools for environmental protection." Futrell, supra note 6, at 51; see also Elizabeth S. Goldman & Stewart E. Sterk, Controlling Legislative Shortsightedness: The Effectiveness of Constitutional Debt Limitations, 1991 Wis. L. REV. 1301, 1304 ("Many [state] constitutional provisions have little to do with the structure of state government, but reflect instead a desire by drafters to indicate the importance of a particular issue by enshrining it in the supreme law of the state."); John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 326 (1996) ("Those who believed state constitutional environmental provisions represented a watershed for environmental protection have been sorely disappointed."). It is dangerous to extrapolate from the constitutional experience of states and other nations to draw conclusions about the United States Constitution. For example, many states have amended their constitutions hundreds of times, suggesting a vastly different attitude about amending than is the case for the Constitution. See Stephen M. Griffin, The Problem of Constitutional Change, 70 TUL. L. REV. 2121, 2140-41 (1996) ("At the state level, change occurs much more often in the form of amendments, the entire constitution is sometimes revised in constitutional conventions, and the constitution becomes, in adapting to changing circumstances, much longer and more like ordinary statutes."); Donald S. Lutz, Toward a Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION, supra note 20, at 237, 247-50. The fact that some states and nations have EQAs thus does not necessarily mean the Constitution should, nor does the fact that few of the EQAs have mattered much in the law of those states and nations necessarily mean that an EQA in the Constitution would be inconsequential. Hence, I limit the discussion of those other jurisdictions to experiences that may meaningfully inform the debate about a federal EQA and the broader question of how to evaluate constitutional amendments. For more comprehensive discussions of state EQAs, see Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063 (1992); Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. ENVTL. AFF. L. REV. 173 (1993); Jose L. Fernandez, State Constitutions, Environmental Rights Provisions, and the Doctrine of Self-Execution: A Political Question?, 17 HARV. ENVTL. L. REV. 333 (1993); Margaret J. Fried & Monique J. Van Damme, Environmental Protection in a Constitutional Setting, 68 TEMPLE L. REV. 1369 (1995); Greg L. Johnson, Constitutional Environmental Protection in Louisiana: Losing the Reason in the Rule of Reasonableness, 42 LOY. L. REV. 97 (1996); A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. REV. 193 (1972); Fernando M. Pinguelo, Laboratory of Ideas: One State's Successful Attempt to Constitutionally Ensure A Healthier Environment, 4 BUFF. ENVTL. L.J. 269 (1997); Oliver A. Pollard III, A Promise Unfulfilled: Environmental Provisions in State Constitutions and the Self-Execution Question, 5 VA. J. NAT. RESOURCES L. 351 (1988); Neil A.F. Popovi, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338 (1996); and for thoughtful discussions of other nations' EQAs, see Gyula Bandi, The Right to Environment in Theory and Practice: The Hungarian Experience, 8 CONN. J. INT'L L. 439 (1993); Ernst Brandi & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1, 14-15 (1992); Elizabeth F. Brown, In Defense of Environmental Rights in East European Constitutions, 1993 U. CHI. L. SCH. ROUNDTABLE 191.
81. Some treatments group the amendments into historical amending episodes usually corresponding with the Bill of Rights (1791-1804), Reconstruction (1865-1870), the Progressive Era (1913-1920), and the civil rights movement (1960s), in which the exogenous political and social conditions precipitated certain kinds of amendments. See VILE, supra note 18, at 19-24; Ginsburg, supra note 18, at 681-86.
82. One commentator classifies amendments based on the degree to which they forestall or initiate change in society, see VILE, supra note 18, at 26, while two others focus on an amendment's effects on economic efficiency, see Boudreaux & Pritchard, supra note 20, at 111.
83. One early classification of amendments and proposed amendments focuses on part of the function side of my proposed classification system, dividing the measures into those which affect the form of government, with subcategories for legislative, executive, and judicial forms, and those affecting the powers of government. See Michael Angelo Musmanno, Proposed Amendments to the Constitution, H.R. Doc No. 551 (1929).
84. There are exceptions, such as the proposed amendment to change the name of the nation to the United States of Earth. See Daniel L. May, The Third Vice President of the United States of Earth, 73 A.B.A. J. 76 (1987).
85. Consider, for example, Karl von Linné's teleologically motivated taxonomic classification of species, which remains the foundation of modern species classifications (the Linnean system), but which Charles Darwin, not Linné, explained in terms of cause. See JONATHAN WEINER, THE BEAK OF THE FINCH 20-25 (1994).
86. See Tribe, supra note 2, at 440 ("The Constitution tells us something, and what it says - although necessarily read through lenses we ourselves bring to the task - must be the touchstone for evaluating the substantive appropriateness of any proposed amendment.").
87. U.S. CONST, amend. XXVII.
88. U.S. CONST, amend. XII (establishing the procedures of the Electoral College).
89. U.S. CONST, amend. XIV, §§2-3 (establishing apportionment of Representatives and criteria for disqualifying persons from office).
90. U.S. CONST, amend. XVI (establishing Congress' income taxation power).
91. U.S. CONST, amend. XVII (establishing the composition and election of the Senate).
92. U.S. CONST, amend. XX (establishing the dates of the terms of the President and Vice-President).
93. U.S. CONST, amend. XXI (repealing the Eighteenth Amendment).
94. U.S. CONST, amend. XXII (establishing the maximum terms of the President).
95. U.S. CONST, amend. XXIII (establishing the District of Columbia's representatives to Congress).
96. U.S. CONST, amend. XXV (establishing the order of succession to the Presidency in cases of death or resignation, the procedures for filling of vacancies in the office of Vice-President, and procedures for removal of the President).
97. See generally Futrell, supra note 6, at 52; Schmaltz, supra note 6, at 457-58.
98. See VILE, supra note 18, at 19-20; BERNSTEIN & AGEL, supra note 18, at 49.
99. U.S. CONST, amend. II (right to bear arms "shall not be infringed").
100. U.S. CONST, amend. III ("no soldier shall" be quartered).
101. U.S. CONST, amend. IV (rights against unreasonable search and seizure "shall not be violated, and no Warrant shall issue").
102. U.S. CONST, amend. V ("no person shall be held" without indictment; "nor shall any person be subject" to double jeopardy; "nor shall be compelled" to provide witness against himself or herself; "nor be deprived" without due process; "nor shall private property be taken for public use without just compensation").
103. U.S. CONST, amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.").
104. U.S. CONST, amend. IX (the enumeration of rights "shall not be construed to deny or disparage" retained rights).
105. U.S. CONST, amend. XIV, §1 ("[n]o state shall make or enforce any law which shall abridge" privileges and immunities; "nor shall any State deprive" life, etc. without due process; "nor deny" equal protection).
106. The voting rights amendments follow the model: "The right of citizens of the United States . . . to vote . . . shall not be denied or abridged. . . ." See U.S. CONST. amends. XV (race, color, servitude), XIX (gender), XXIV (poll tax), XXVI (age).
107. U.S. CONST, amend. VII ("In Suits at common law . . . the right of trial by jury shall be preserved. . . .").
108. U.S. CONST, amend. X (powers not delegated to United States or prohibited to the States are "reserved to the States . . . or to the people").
109. U.S. CONST, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right. . . .").
110. Some commentators count the Eighteenth Amendment as aspirational, see, e.g., Futrell, supra note 6, at 52; however, while surely it was motivated primarily by prohibition-minded aspirations, textually it was strictly prohibitory in nature. See U.S. CONST, amend. XVIII, §1 ("the manufacture, sale, or transportation of intoxicating liquors . . . for beverage purposes is hereby prohibited").
111. See Paula Rhodes, An Afro-American Perspective: We the People and the Struggle for a New World: The Constitution of the United States of America and International Human Rights, 1987 How. L.J. 705.
112. See John Hart Ely, Toward a Representation-Reinforcing Mode of Judicial Review, 37 MD. L. REV. 451, 484 (1978) ("[O]nly rarely has our Constitution attempted to tell elected officials what substantive values to favor or disfavor. . . .").
113. U.S. CONST. amend. XXV.
114. U.S. CONST. amend. XVII.
115. U.S. CONST. amend. XI (establishing states' sovereign immunity by stating the prohibition that "[t] he Judicial power of the United States shall not be construed").
116. U.S. CONST. amend. X.
117. U.S. CONST. amend. XIII.
118. U.S. CONST. amend. XVIII, § 1.
119. The authors of the version of the EQA being introduced in state legislatures do not elaborate on the scope of their proposal sufficiently to draw conclusions in this regard. In his version of the EQA, however, Rodger Schlickeisen uses the term "common property" in place of "heritage," and contends that the EQA "should establish the right to benefits of living nature and explicitly extend the right to future generations as a class." See Schlickeisen, supra note 12, at 234. The aspirational component of his EQA thus may be implicit rather than one of its primary purposes.
120. This is clearly the intent of Roger Schlickeisen's similarly worded EQA, which he contends would provide citizens with "a direct means of bringing a cause of action to prohibit legislative or other government action that violates the government's obligation to protect living nature's benefits." Id.
121. Brodsky & Russman, supra note 12, at 37.
122. One commentator has suggested that the right to a clean environment is "preexisting" in the sense that it can be inferred from the Preamble to the Constitution, which describes as one purpose of the Constitution to "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. . . ." U.S. CONST. preamble. See, e.g., Schmaltz, supra note 6, at 458 n.44. Of course, this interpretation of the Preamble would support a "right" to a good job, a decent home, a good education, and a whole package of other social welfare policies not generally understood as having the status of pre-existing constitutional rights. Indeed, all efforts to have a right to a clean environment recognized under the existing Constitution have failed. See id. at 462-64; Cusack, supra note 22, at 175-79; Futrell, supra note 6, at 50 n.9.
123. See KYVIG, supra note 4, at 394-425 (exploring the political climate leading to the eventual failure of the Equal Rights Amendment); Pinguelo, supra note 22, at 288 (observing that the experience of New Jersey's ratification of a state constitutional EQA "demonstrates that non-partisan political support and the support of competing special interests are key ingredients").
124. See VILE, supra note 20, at 28 (suggesting that this was the eventual Federalist attitude toward the Bill of Rights, which allowed its ratification).
125. Tribe, supra note 2, at 436.
126. See VILE, supra note 20, at 95-96 (discussing Prohibition and the Equal Rights Amendment as examples of efforts by special interest groups to achieve constitutional endorsement of their agendas, one temporarily successful and the other a failure after long political debate).
127. Brodsky & Russman, supra note 12, at 37.
128. See, e.g., RON ARNOLD & ALAN GOTTLIEB, TRASHING THE ECONOMY: How RUNAWAY ENVIRONMENTALISM is WRECKING AMERICA (2d ed. 1994) (manifesto from the modern property rights movement's informal founders). See generally JACQUELINE VAUGHN SUITZER, GREEN BACKLASH: THE HISTORY AND POLITICS OF ENVIRONMENTAL OPPOSITION IN THE U.S. (1997) (history of the emergence of the property rights movement); LAND RIGHTS: THE 1990's PROPERTY RIGHTS REBELLION (Bruce Yandle ed., 1995) (collection of essays on the property rights movement). These extreme property rights advocates have managed to reshape mainstream politics to the point that some idols of die-hard preservationists, such as the Endangered Species Act, are fighting to remain intact. See Schlickeisen, supra note 12, at 199-200 (discussing the emergence of the property rights movement and its effects on the Endangered Species Act programs and politics); J. B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies'Duty to Conserve Species, 25 ENVTL. L. 1107, 1137-42 (1995) (same).
129. See, e.g., RON ARNOLD & ALAN GOTTLIEB, TRASHING THE ECONOMY: How RUNAWAY ENVIRONMENTALISM is WRECKING AMERICA (2d ed. 1994) (manifesto from the modern property rights movement's informal founders). See generally JACQUELINE VAUGHN SUITZER, GREEN BACKLASH: THE HISTORY AND POLITICS OF ENVIRONMENTAL OPPOSITION IN THE U.S. (1997) (history of the emergence of the property rights movement); LAND RIGHTS: THE 1990's PROPERTY RIGHTS REBELLION (Bruce Yandle ed., 1995) (collection of essays on the property rights movement). These extreme property rights advocates have managed to reshape mainstream politics to the point that some idols of die-hard preservationists, such as the Endangered Species Act, are fighting to remain intact. See Schlickeisen, supra note 12, at 199-200 (discussing the emergence of the property rights movement and its effects on the Endangered Species Act programs and politics); J. B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies'Duty to Conserve Species, 25 ENVTL. L. 1107, 1137-42 (1995) (same).
130. See, e.g., RON ARNOLD & ALAN GOTTLIEB, TRASHING THE ECONOMY: How RUNAWAY ENVIRONMENTALISM is WRECKING AMERICA (2d ed. 1994) (manifesto from the modern property rights movement's informal founders). See generally JACQUELINE VAUGHN SUITZER, GREEN BACKLASH: THE HISTORY AND POLITICS OF ENVIRONMENTAL OPPOSITION IN THE U.S. (1997) (history of the emergence of the property rights movement); LAND RIGHTS: THE 1990's PROPERTY RIGHTS REBELLION (Bruce Yandle ed., 1995) (collection of essays on the property rights movement). These extreme property rights advocates have managed to reshape mainstream politics to the point that some idols of die-hard preservationists, such as the Endangered Species Act, are fighting to remain intact. See Schlickeisen, supra note 12, at 199-200 (discussing the emergence of the property rights movement and its effects on the Endangered Species Act programs and politics); J. B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies'Duty to Conserve Species, 25 ENVTL. L. 1107, 1137-42 (1995) (same).
131. See, e.g., RON ARNOLD & ALAN GOTTLIEB, TRASHING THE ECONOMY: How RUNAWAY ENVIRONMENTALISM is WRECKING AMERICA (2d ed. 1994) (manifesto from the modern property rights movement's informal founders). See generally JACQUELINE VAUGHN SUITZER, GREEN BACKLASH: THE HISTORY AND POLITICS OF ENVIRONMENTAL OPPOSITION IN THE U.S. (1997) (history of the emergence of the property rights movement); LAND RIGHTS: THE 1990's PROPERTY RIGHTS REBELLION (Bruce Yandle ed., 1995) (collection of essays on the property rights movement). These extreme property rights advocates have managed to reshape mainstream politics to the point that some idols of die-hard preservationists, such as the Endangered Species Act, are fighting to remain intact. See Schlickeisen, supra note 12, at 199-200 (discussing the emergence of the property rights movement and its effects on the Endangered Species Act programs and politics); J. B. Ruhl, Section 7(a)(1) of the "New" Endangered Species Act: Rediscovering and Redefining the Untapped Power of Federal Agencies'Duty to Conserve Species, 25 ENVTL. L. 1107, 1137-42 (1995) (same).
132. See, e.g., J. Baird Callicott & Karen Mumford, Ecological Sustainability as a Conservation Concept, 11 CONSERVATION BIOLOGY 32, 34 (1997) (identifying "resourcism" and "preservationism" as philosophies that dominated the first three quarters of the twentieth century); Marc R. Poirier, Property, Environment, Community, 12 J. ENVTL. L. & LITIG. 43, 45 (1997) (identifying the roots of the "property encomium" and the "environmental jeremiad").
133. See, e.g., J. Baird Callicott & Karen Mumford, Ecological Sustainability as a Conservation Concept, 11 CONSERVATION BIOLOGY 32, 34 (1997) (identifying "resourcism" and "preservationism" as philosophies that dominated the first three quarters of the twentieth century); Marc R. Poirier, Property, Environment, Community, 12 J. ENVTL. L. & LITIG. 43, 45 (1997) (identifying the roots of the "property encomium" and the "environmental jeremiad").
134. U.S. CONST, amend. V. Spurred by recent Supreme Court decisions indicating an increased willingness to find and redress uncompensated takings and exactions, both the browns and, ironically, the greens, have suggested that the Fifth Amendment poses a substantial barrier to environmental regulation. In fact the string of recent decisions has had little effect on environmental regulation and is unlikely, assuming federal and state governments design environmental regulations with the Fifth Amendment in mind, to require any fundamental shift in policy or approach. See Glenn P. Sugameli, Takings Issues in Light of Lucas v. South Carolina Coastal Council: A Decision Full of Sound and Fury Signifying Nothing, 12 VA. ENVTL. L.J. 439 (1993).
135. See Freyfogle, supra note 14, at 166-71 (describing the Bill of Rights and the Fourteenth Amendment as fundamentally anti-environmental and concluding that "[o]ur Constitution needs a green amendment today principally to serve as a counterbalance" to those provisions). The EQA proposals made to date, however, supply virtually no enforceable, as opposed to symbolic, counterbalance in that respect. Short of outright repeal to the takings clause in cases of environmental regulation, an EQA would not counter the government's duty to compensate in cases of regulatory takings. In other words, empowering or requiring Congress to protect the environment, without more, does not alter the duty to compensate in takings cases any more than the power to regulate commerce between the states does. Moreover, providing Congress the enumerated duty or power to regulate on behalf of the environment, without more, prescribes no level of regulation or method of choosing between environment and economy. To provide a substantive counter to the alleged anti-environment provisions in the Constitution, therefore, an EQA would need to reverse the takings clause in cases of environmental regulation and actively "tip" government decision-making in favor of the environment when policy decisions present environment versus economy choices. No EQA proposal has done so, and, for reasons outlined in the text, no EQA proposal is likely to do so in the foreseeable future.
136. Public opinion polls show that Americans who say they care about the environment have grown in number steadily through 1991, to more than 60% of the population, and have plateaued at a level at which environmentalism can be considered "mainstream." Nevertheless, only a small fraction of those "environmentalists" actively make environmentalism their way of life through dedicated recycling, composting, water conservation, xeriscape, and so on. See Tibbett L. Speer, Growing in the Green Market, 19 AM. DEMOGRAPHICS 45 (1997); Peter Stisser, A Deeper Shade of Green, 16 AM. DEMOGRAPHICS 24 (1994); Traci Watson, For Most Americans, It's not Easy Being Green, USA TODAY, Apr. 22, 1998, at 3A. Some commentators find the mainstreaming of American environmentalism a disturbing indication that environmentalists have "caved in" to economic development interests, against which they call for emergence of a new radical, noncompromising environmental movement to regain the ground they perceive has been lost. See MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995).
137. Public opinion polls show that Americans who say they care about the environment have grown in number steadily through 1991, to more than 60% of the population, and have plateaued at a level at which environmentalism can be considered "mainstream." Nevertheless, only a small fraction of those "environmentalists" actively make environmentalism their way of life through dedicated recycling, composting, water conservation, xeriscape, and so on. See Tibbett L. Speer, Growing in the Green Market, 19 AM. DEMOGRAPHICS 45 (1997); Peter Stisser, A Deeper Shade of Green, 16 AM. DEMOGRAPHICS 24 (1994); Traci Watson, For Most Americans, It's not Easy Being Green, USA TODAY, Apr. 22, 1998, at 3A. Some commentators find the mainstreaming of American environmentalism a disturbing indication that environmentalists have "caved in" to economic development interests, against which they call for emergence of a new radical, noncompromising environmental movement to regain the ground they perceive has been lost. See MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995).
138. Public opinion polls show that Americans who say they care about the environment have grown in number steadily through 1991, to more than 60% of the population, and have plateaued at a level at which environmentalism can be considered "mainstream." Nevertheless, only a small fraction of those "environmentalists" actively make environmentalism their way of life through dedicated recycling, composting, water conservation, xeriscape, and so on. See Tibbett L. Speer, Growing in the Green Market, 19 AM. DEMOGRAPHICS 45 (1997); Peter Stisser, A Deeper Shade of Green, 16 AM. DEMOGRAPHICS 24 (1994); Traci Watson, For Most Americans, It's not Easy Being Green, USA TODAY, Apr. 22, 1998, at 3A. Some commentators find the mainstreaming of American environmentalism a disturbing indication that environmentalists have "caved in" to economic development interests, against which they call for emergence of a new radical, noncompromising environmental movement to regain the ground they perceive has been lost. See MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995).
139. Public opinion polls show that Americans who say they care about the environment have grown in number steadily through 1991, to more than 60% of the population, and have plateaued at a level at which environmentalism can be considered "mainstream." Nevertheless, only a small fraction of those "environmentalists" actively make environmentalism their way of life through dedicated recycling, composting, water conservation, xeriscape, and so on. See Tibbett L. Speer, Growing in the Green Market, 19 AM. DEMOGRAPHICS 45 (1997); Peter Stisser, A Deeper Shade of Green, 16 AM. DEMOGRAPHICS 24 (1994); Traci Watson, For Most Americans, It's not Easy Being Green, USA TODAY, Apr. 22, 1998, at 3A. Some commentators find the mainstreaming of American environmentalism a disturbing indication that environmentalists have "caved in" to economic development interests, against which they call for emergence of a new radical, noncompromising environmental movement to regain the ground they perceive has been lost. See MARK DOWIE, LOSING GROUND: AMERICAN ENVIRONMENTALISM AT THE CLOSE OF THE TWENTIETH CENTURY (1995).
140. See Richard J. Lazarus, Fairness in Environmental Law, 27 ENVTL. L. 705, 708-10 (1997) (tracing the "broadside challenge" to environmental protection laws of the 104th Congress, and demonstrating that "virtually none of the reform efforts resulted in legislative change").
141. See id. at 710 ("Those who support the basic philosophy and goals of federal environmental law should not mistake the public's rejection of the 104th congressional agenda for the absence of concerns about unfairness in environmental law."). 77 Most of the literature covering the property rights movement emanates from groups closely associated until extreme preservationism, who deride the property rights movement at every opportunity for the effect they have had on the environmentalists' agenda. See, e.g., LET THE PEOPLE JUDGE: WISE USE AND THE PRIVATE PROPERTY RIGHTS MOVEMENT (John Echeverria & Raymond Booth Eby eds., 1995) (collection of articles and essays by environmentalists about the property rights movement). 78 See Tribe, supra note 2, at 441-42 ("As the history of prohibition illustrates, enacting such [substantive] measures through constitutional amendment rather than by statute renders them dangerously resistant to modification.") (footnote omitted).
142. Id. at 442 (emphasis added).
143. Id.
144. See Griffin, supra note 22, at 2137 ("One purpose of placing only the most fundamental principles in the Constitution was to preserve the difference between the Constitution and ordinary law.").
145. The first section of the Fourteenth Amendment, giving full citizenship to all persons born or naturalized in the United States, reversed the Supreme Court's decision in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), that the Missouri Compromise barring slavery from the territories was unconstitutional. The Twenty-Sixth Amendment, giving voting rights to citizens eighteen years and older, reversed the Court's decision in Oregon v. Mitchell, 400 U.S. 112 (1970), that the Constitution does not prohibit the states from establishing twenty-one as the minimum voting age. The Nineteenth Amendment, giving voting rights to women, nullified an 1874 decision of the Court in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874), ruling that states could limit voting rights to men alone. See generally Dellinger, supra note 20, at 414-15; Ginsburg, supra note 18, at 686-89.
146. The voting rights amendments, for example, not only negated Supreme Court rulings leaving matters of enfranchisement to the states, see supra note 48, but also then dictated the national policy to all the states.
147. See also Developing Standards, supra note 21, at 10-11 (including as one of the criteria for evaluating amendment proposals the condition that "Constitutional amendments should be utilized only when there are significant practical or legal obstacles to the achievement of the same objective by other means").
148. Some commentators advocating adoption of an EQA do not go so far as to make the institutional necessity argument, but rather focus on what they contend is generally the "conservatism" of the Supreme Court in environmental issues and the propensity of Congress to accede to economic interests adverse to the environment. See, e.g., Schmaltz, supra note 6, at 453; Schlickeisen, supra note 12, at 229-33. Assuming the necessity criterion were relaxed, it remains unclear how these commentators believe an EQA, short of prescribing regulatory specifics, would prevent the Supreme Court and Congress from continuing their track record when it comes time to implement and interpret the EQA. See infra text accompanying notes 105-10.
149. Brodsky & Russman, supra note 12, at 37.
150. 514 U.S. 549 (1995).
151. See William Funk, The Lopez Report, 23 ADMIN. & REG. L. NEWS 1, 1 (1998).
152. See id. at 14-15 (reviewing environmental regulation cases decided under Lopez). One court has invalidated an environmental regulation that purported to extend jurisdiction over actions that could affect, rather than substantially affect, interstate commerce. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997). Because the court found the rule exceeded the statutory grant of authority to the agency, the court only suggested that the regulation may also exceed the reach of federal constitutional power. See id. at 257. Beyond that minor potential setback, which the agency can redress simply by redrafting the regulation to include the magic word substantially, no environmental regulation has suffered harm under Lopez. See, e.g., National Home Builders Ass'n v. Babbitt, 130 F.3d 1041, 1045-53 (D.C. Cir. 1997) (application of Endangered Species Act to protect intrastate habitat of an endangered fly does not exceed Congress' commerce power); United States v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997) (application of Superfund law to isolated, intrastate contaminated site does not exceed Congress' commerce power); Solid Waste Agency of North Cook County v. United States Army Corps of Eng'rs, 998 F. Supp. 946, 951-53 (N.D. I11. 1998) (application of Clean Water Act section 404 to protect isolated intrastate wetlands does not exceed Congress' commerce power).
153. Brodsky & Russman, supra note 12, at 37. This charge is leveled against the Court's decision that the Eleventh Amendment bars suits brought under so-called "citizen suit" provisions, which are found in many federal environmental laws, to com-pel state compliance with federal law. See Seminole Tribe v. Florida, 517 U.S. 44 (1996). The effects of the decision are narrow, however, as (1) the Eleventh Amendment does not apply to city, county, and other sub-state governmental entities; (2) the Court specifically preserved the Ex Parte Young doctrine allowing citizens to sue state officials for violating federal laws; and (3) the Eleventh Amendment does not bar the United States from enforcing federal law against states or from preempting state law altogether. See PERCIVAL, supra note 8, at 332-34.
154. Brodsky & Russman, supra note 12, at 37. Here their concern is with New York v. United States, 505 U.S. 144 (1992), which held that Congress may not compel the states to enact or implement environmental regulations. The Court held that Congress could not require states to take title to low-level nuclear waste if they did not permit a disposal facility for such waste. See id. at 159-66. The decision does not, however, prevent Congress from imposing federal environmental protection regulations directly on or in the states. Moreover, the Court specifically upheld the practice, commonly used in federal environmental laws adopting so-called "cooperative federalism" frameworks, of enticing the states to adopt and enforce federal law as state law through financial support and delegation of authority. See id. at 166-69. By preserving such approaches, and precluding only the approach of forcing states to regulate in line with federal wishes, the impact of the decision is minimal in environmental law. See PERCIVAL, supra note 8, at 118-19.
155. Indeed, a growing body of literature outlines how, in the appropriate political climate, biodiversity can be protected through extension of existing legislative initiatives, and with greater speed and precision than an EQA could offer. See Richard J. Blaustein, Biodiversity and the Law, 26 ENVTL. L. 1313, 1318 (1996) (reviewing BIODIVERSITY AND THE LAW (William J. Snape III ed., 1996)) (arguing that the time it would take for judicial interpretation to put the EQA in motion on behalf of biodiversity protection is too long compared to the other avenues of legal reform suggested in the biodiversity literature such as the book reviewed). By contrast, the Supreme Court has struck down state and federal legislation prohibiting burning of the United States flag. See United States v. Eichman, 496 U.S. 310 (1990) (federal legislation); Texas v. Johnson, 491 U.S. 397 (1989) (state legislation). Advocates of the flag burning amendment, therefore, have a legitimate argument that their amendment, assuming it were to gain sufficient public support, is institutionally necessary. See Developing Standards, supra note 21, at 12.
156. One leading environmental law commentator goes so far as to say that "[o]ne need only look to America's own states - its environmental 'test tubes' - for signs of important environmental goings - on." Bud Ward, The Train Moves On, 11 ENVTL. F. 41, 46 (1994). See also John Pendergrass, You Say You Want a Devolution, 12 ENVTL; F. 8 (1995) ("[M]any, if not most, of the best and most innovative ideas in environmental and natural resource protection have come from the states."); John Pendergrass, A Rich History of State Innovation, 11 ENVTL. L. 12 (1994) (describing several of the ideas emanating from states that eventually became embedded in federal requirements applicable to all states); Robert L. Rhodes, Jr., Where Do We Go from Here? Reforming U.S. Environmental Laws In Congress, 26 Env't Rep (BNA) 991 (1995) (contending that "state governments are more able to take on a large role in protecting the environment"); State Cleanup Systems More Effective Than Federal Superfund Program, Report Says, 26 Env't Rep. (BNA) 982 (1995) (former EPA official contends "[s]tates are cleaning up contaminated waste sites 'at a fraction of the time and cost' of the federal superfund program"). Recently, in order to share with each other their innovations and successes, the states formed the Environmental Council of the States (EGOS). See Mary A. Gade, When the States Come Marching In, NAT. RESOURCES & ENV'T, Winter 1996, at 3. (Ms. Gade, the director of the Illinois Environmental Protection Agency and first president of ECOS, contends that "the environmental system that has given us unprecedented and extraordinary environmental progress to date, is now outmoded and unable to meet the environmental challenges ahead. And that is where the states come marching in - somewhat brazenly and clearly in lockstep.").
157. One leading environmental law commentator goes so far as to say that "[o]ne need only look to America's own states - its environmental 'test tubes' - for signs of important environmental goings - on." Bud Ward, The Train Moves On, 11 ENVTL. F. 41, 46 (1994). See also John Pendergrass, You Say You Want a Devolution, 12 ENVTL; F. 8 (1995) ("[M]any, if not most, of the best and most innovative ideas in environmental and natural resource protection have come from the states."); John Pendergrass, A Rich History of State Innovation, 11 ENVTL. L. 12 (1994) (describing several of the ideas emanating from states that eventually became embedded in federal requirements applicable to all states); Robert L. Rhodes, Jr., Where Do We Go from Here? Reforming U.S. Environmental Laws In Congress, 26 Env't Rep (BNA) 991 (1995) (contending that "state governments are more able to take on a large role in protecting the environment"); State Cleanup Systems More Effective Than Federal Superfund Program, Report Says, 26 Env't Rep. (BNA) 982 (1995) (former EPA official contends "[s]tates are cleaning up contaminated waste sites 'at a fraction of the time and cost' of the federal superfund program"). Recently, in order to share with each other their innovations and successes, the states formed the Environmental Council of the States (EGOS). See Mary A. Gade, When the States Come Marching In, NAT. RESOURCES & ENV'T, Winter 1996, at 3. (Ms. Gade, the director of the Illinois Environmental Protection Agency and first president of ECOS, contends that "the environmental system that has given us unprecedented and extraordinary environmental progress to date, is now outmoded and unable to meet the environmental challenges ahead. And that is where the states come marching in - somewhat brazenly and clearly in lockstep.").
158. One leading environmental law commentator goes so far as to say that "[o]ne need only look to America's own states - its environmental 'test tubes' - for signs of important environmental goings - on." Bud Ward, The Train Moves On, 11 ENVTL. F. 41, 46 (1994). See also John Pendergrass, You Say You Want a Devolution, 12 ENVTL; F. 8 (1995) ("[M]any, if not most, of the best and most innovative ideas in environmental and natural resource protection have come from the states."); John Pendergrass, A Rich History of State Innovation, 11 ENVTL. L. 12 (1994) (describing several of the ideas emanating from states that eventually became embedded in federal requirements applicable to all states); Robert L. Rhodes, Jr., Where Do We Go from Here? Reforming U.S. Environmental Laws In Congress, 26 Env't Rep (BNA) 991 (1995) (contending that "state governments are more able to take on a large role in protecting the environment"); State Cleanup Systems More Effective Than Federal Superfund Program, Report Says, 26 Env't Rep. (BNA) 982 (1995) (former EPA official contends "[s]tates are cleaning up contaminated waste sites 'at a fraction of the time and cost' of the federal superfund program"). Recently, in order to share with each other their innovations and successes, the states formed the Environmental Council of the States (EGOS). See Mary A. Gade, When the States Come Marching In, NAT. RESOURCES & ENV'T, Winter 1996, at 3. (Ms. Gade, the director of the Illinois Environmental Protection Agency and first president of ECOS, contends that "the environmental system that has given us unprecedented and extraordinary environmental progress to date, is now outmoded and unable to meet the environmental challenges ahead. And that is where the states come marching in - somewhat brazenly and clearly in lockstep.").
159. One leading environmental law commentator goes so far as to say that "[o]ne need only look to America's own states - its environmental 'test
160. One leading environmental law commentator goes so far as to say that "[o]ne need only look to America's own states - its environmental 'test tubes' - for signs of important environmental goings - on." Bud Ward, The Train Moves On, 11 ENVTL. F. 41, 46 (1994). See also John Pendergrass, You Say You Want a Devolution, 12 ENVTL; F. 8 (1995) ("[M]any, if not most, of the best and most innovative ideas in environmental and natural resource protection have come from the states."); John Pendergrass, A Rich History of State Innovation, 11 ENVTL. L. 12 (1994) (describing several of the ideas emanating from states that eventually became embedded in federal requirements applicable to all states); Robert L. Rhodes, Jr., Where Do We Go from Here? Reforming U.S. Environmental Laws In Congress, 26 Env't Rep (BNA) 991 (1995) (contending that "state governments are more able to take on a large role in protecting the environment"); State Cleanup Systems More Effective Than Federal Superfund Program, Report Says, 26 Env't Rep. (BNA) 982 (1995) (former EPA official contends "[s]tates are cleaning up contaminated waste sites 'at a fraction of the time and cost' of the federal superfund program"). Recently, in order to share with each other their innovations and successes, the states formed the Environmental Council of the States (EGOS). See Mary A. Gade, When the States Come Marching In, NAT. RESOURCES & ENV'T, Winter 1996, at 3. (Ms. Gade, the director of the Illinois Environmental Protection Agency and first president of ECOS, contends that "the environmental system that has given us unprecedented and extraordinary environmental progress to date, is now outmoded and unable to meet the environmental challenges ahead. And that is where the states come marching in - somewhat brazenly and clearly in lockstep.").
161. One leading environmental law commentator goes so far as to say that "[o]ne need only look to America's own states - its environmental 'test tubes' - for signs of important environmental goings - on." Bud Ward, The Train Moves On, 11 ENVTL. F. 41, 46 (1994). See also John Pendergrass, You Say You Want a Devolution, 12 ENVTL; F. 8 (1995) ("[M]any, if not most, of the best and most innovative ideas in environmental and natural resource protection have come from the states."); John Pendergrass, A Rich History of State Innovation, 11 ENVTL. L. 12 (1994) (describing several of the ideas emanating from states that eventually became embedded in federal requirements applicable to all states); Robert L. Rhodes, Jr., Where Do We Go from Here? Reforming U.S. Environmental Laws In Congress, 26 Env't Rep (BNA) 991 (1995) (contending that "state governments are more able to take on a large role in protecting the environment"); State Cleanup Systems More Effective Than Federal Superfund Program, Report Says, 26 Env't Rep. (BNA) 982 (1995) (former EPA official contends "[s]tates are cleaning up contaminated waste sites 'at a fraction of the time and cost' of the federal superfund program"). Recently, in order to share with each other their innovations and successes, the states formed the Environmental Council of the States (EGOS). See Mary A. Gade, When the States Come Marching In, NAT. RESOURCES & ENV'T, Winter 1996, at 3. (Ms. Gade, the director of the Illinois Environmental Protection Agency and first president of ECOS, contends that "the environmental system that has given us unprecedented and extraordinary environmental progress to date, is now outmoded and unable to meet the environmental challenges ahead. And that is where the states come marching in - somewhat brazenly and clearly in lockstep.").
162. See Sara Parker, The CRM Approach: Protecting Missouri's Natural Heritage, NAT. RESOURCES & ENV'T, Winter 1996, at 10; Douglas P. Wheeler, An Ecosystem Approach to Species Protection, NAT. RESOURCES & ENV'T, Winter 1996, at 7.
163. See Sara Parker, The CRM Approach: Protecting Missouri's Natural Heritage, NAT. RESOURCES & ENV'T, Winter 1996, at 10; Douglas P. Wheeler, An Ecosystem Approach to Species Protection, NAT. RESOURCES & ENV'T, Winter 1996, at 7.
164. See George E.H. Gay, State Solutions to Growth Management: Vermont, Oregon, and a Synthesis, NAT. RESOURCES & ENV'T, Winter 1996, at 13.
165. See M. Allison Hamm, The Massachusetts Experience with Nonpoint Sources: Regulators Beware!, NAT. RESOURCES & ENV'T, Winter 1996, at 47.
166. For example, in his comparison of the three different vehicles of constitutional change - amendments, judicial interpretations, and legislation - John Vile uses a wide array of criteria: ease, range, direction, speed, visibility, stability, flexibility, democracy, protection of minority rights, susceptibility to special interests, federalism, separation of powers, perceived legitimacy, historical and textual support, safety and regularity, prolixity and style, clarity, unity, deliberation, respect for the Constitution, and constitutional atrophy, efficacy, finality, adequacy, and interaction. See VILE, supra note 20, at 85-115. Many of his criteria focus on procedural qualities; the rest can be encapsulated in the three broad qualities I describe.
167. See Developing Standards, supra note 21, at 15 ("most existing constitutional amendments are . . . silent regarding the means of enforcement"). Some amendments go so far as to at least specify which governmental bodies may enforce the measure. See, e.g., U.S. CONST. amend. XVIII, § 1 (repealed Dec. 5, 1933) ("The Congress and the several States shall have the concurrent power to enforce this article by appropriate legislation."); U.S. CONST. amend. XXVI, § 2 ("The Congress shall have the power to enforce this article by appropriate legislation.").
168. Compare Robin West, The Aspiralional Constitution, 88 Nw. U. L. REV. 241 (1993) (advocating a legislatively enforced, aspirational style of constitutionalism), with Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. REV. 269 (1993) (contending the U.S. model of a judicially enforced constitution is superior).
169. Compare Robin West, The Aspiralional Constitution, 88 Nw. U. L. REV. 241 (1993) (advocating a legislatively enforced, aspirational style of constitutionalism), with Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. REV. 269 (1993) (contending the U.S. model of a judicially enforced constitution is superior).
170. See Developing Standards, supra note 21, at 15 (Proposing that "Constitutional amendments should embody enforceable, and not purely aspiration, standards.").
171. Some commentators see this as one benefit of the EQA. See Howard, supra note 22, at 203; Schlickeisen, supra note 12, at 234.
172. For a discussion of how state EQAs have fared with respect to similar questions of interpretation, showing how state courts have differed over a variety of fundamental implementing terms and mechanisms, see Cusack, supra note 22, at 182-96.
173. See Developing Standards, supra note 21, at 17 ("Proponents of the equal rights amendment were never able to answer questions about the specific legal effects of the amendment.").
174. The U.S. Environmental Protection Agency accounts for the over 10,000 pages of final regulations found in title 40 of the Code of Federal Regulations, and the agency published almost 3500 pages of preamble and proposed and final regulations in the Federal Register during the first six months of 1994 alone. See Jerry L. Anderson, The Environmental Revolution at Twenty-Five, 26 RUTGERS L.J. 395, 413 (1995). The combined efforts of the EPA and the many other federal agencies with some environmental regulation jurisdiction "churn out over 35 pages of new or proposed regulations every working day." Id. at 413. Guidance to help interpret these regulations abounds in even vaster quantities. The EPA's hazardous waste management regulations, for example, filled 697 pages of the Code of Federal Regulations in 1994, but there were 19,500 pages of informal guidance accompanying them. See William H. Rodgersjr., Environmental Law Trivia Test No. 2, 22 B.C. ENVTL. AFF. L. REV. 807, 812, 816 (1995).
175. The U.S. Environmental Protection Agency accounts for the over 10,000 pages of final regulations found in title 40 of the Code of Federal Regulations, and the agency published almost 3500 pages of preamble and proposed and final regulations in the Federal Register during the first six months of 1994 alone. See Jerry L. Anderson, The Environmental Revolution at Twenty-Five, 26 RUTGERS L.J. 395, 413 (1995). The combined efforts of the EPA and the many other federal agencies with some environmental regulation jurisdiction "churn out over 35 pages of new or proposed regulations every working day." Id. at 413. Guidance to help interpret these regulations abounds in even vaster quantities. The EPA's hazardous waste management regulations, for example, filled 697 pages of the Code of Federal Regulations in 1994, but there were 19,500 pages of informal guidance accompanying them. See William H. Rodgersjr., Environmental Law Trivia Test No. 2, 22 B.C. ENVTL. AFF. L. REV. 807, 812, 816 (1995).
176. See Griffin, supra note 22, at 2137 (stating that one of the guiding principles articulated during the Federal Convention of 1787 was to use simple and precise language).
177. See Developing Standards, supra note 21, at 16 ("[P]roponents of constitutional amendments should attempt to think through and articulate the consequences of their proposals, including ways in which the amendments would interact with other constitutional provisions and principles.").
178. Brodsky & Russman, supra note 12, at 37.
179. See Futrell, supra note 6, at 55-56 (observing that an EQA. could vest greater environmental regulation authority in the Supreme Court, which has "traditionally . . . been more closely aligned with the defense of property rights," and thus could "remove the action from the environmentalist's home base (Congress)").
180. See Horwich, supra note 22, at 326 ("Time and again, state courts have limited the impact of these environmental provisions. State courts have repeatedly held these environmental provisions are not self-executing: the courts ruled that they create no new rights, impose no new obligations and establish no new limits on government or private action in the absence of state legislation implementing their terms.") (footnotes omitted).
181. On the other hand, if the hoped-for turnaround happens sooner rather than later, the argument for institutional necessity becomes even weaker than it is today. See supra text accompanying notes 63-96.
182. Tribe, supra note 2, at 441.
183. See VILE, supra note 20, at 91-92.
184. Id. at 92. See also Developing Standards, supra note 21, at 7 ("[Constitutional amendments should address matters of more than immediate concern that are likely to be recognized as of abiding importance by subsequent generations.").
185. See VILE, supra note 20, at 92.
186. The movement for reform of environmental regulation based on the need for more flexibility has rapidly permeated a wide array of environmental issues. See Symposium, Regulatory Reform, 12 NAT. RESOURCES & ENV'T 155 (1998) (collecting articles describing flexibility reform initiatives in air pollution law, worker safety and health law, endangered species protection law, mining law, contaminated sites remediation law, and other fields).
187. At its broadest, sustainable development is the philosophy that today's progress must not come at tomorrow's expense, and that human progress thus must be sustained not just in a few places for a few years, but for the entire planet into the distant future, See Jonathan Lash, Toward a Sustainable Future, 12 NAT. RESOURCES & ENV'T 83, 83 (1997). In its description of the need to depart from the command-and-control model in order to implement sustainable development policy, the President's Council on Sustainable Development succinctly stated: For the last 25 years, government has relied on command-and-control regulation as its primary tool for environmental management. In looking to the future, society needs to adopt a wider range of strategic environmental protection approaches that embrace the essential components of sustainable development . . . . PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, SUSTAINABLE AMERICA 26 (1996).