FIXED CONSTITUTIONAL COMMITMENTS: EVALUATING ENVIRONMENTAL CONSTITUTIONALISM'S 'NEW FRONTIER'.

• Date: 01 December 2022
• Author: Levy, Ron

CONTENTS I Introduction II Defining Fixed Constitutional Commitments A Fixed B Binding C Entrenched III Objection and Replies A Objection from Democracy B Replies 1 External Replies 2 Internal Replies (a) Mal-Representation (b) Constitutional Indecision IV Conclusion I INTRODUCTION

In 2019-20, when France's Citizens' Convention for Climate convened 150 randomly selected citizens to deliberate and recommend a climate change mitigation strategy, both the process and its outcome attracted worldwide attention. (1) The Convention proposed an alteration to the French Constitution of 4 October 1958 to provide that France 'guarantees environmental protection and biological diversity, and combats climate change'. (2) The change promised to burnish the country's, and President Macron's, reputation for innovative climate action. Yet the Senate soon watered down the language, which it viewed as too strong and incompatible with the country's economic interests. (3) Divided parliamentarians ultimately abandoned the constitutional initiative altogether. (4) International media accounts generally understood the French case as a missed opportunity for environmental constitutionalism. It was an especially bitter disappointment to many activists. (5) Yet many close observers of constitutions will read the episode as just another case of misguided enthusiasm for broad, hortatory constitutional provisions as solutions to policy challenges. Constitutional guarantees, rights and obligations regarding the environment have proliferated since the first modern example in Portugal in 1976. (6) The French amendment would have joined an expanding global set of provisions entrenching, for instance, a 'healthy environment' (7) and commitments to climate action. (8) As with other constitutional laws, however, environmental provisions have mixed records. Nearly all existing entrenched environmental provisions set out aspirational principles that are expressly or implicitly subject to forms of limitation. Nearly all trigger some form of the ubiquitous proportionality test or other kinds of balancing. And nearly all, therefore, permit economic interests and other presumptive concerns to continue offsetting robust environmental protections. (9)

In this article, I explore a novel type of constitutional provision that departs markedly from most past constitutional practice in general, and environmental constitutional practice in particular. This provision, which may be termed the 'fixed constitutional commitment', secures both a substantive policy and its precise quantum (eg net-zero carbon emissions by a given year). (10) The commitment is 'fixed' in that, after enactment, the policy is intended to be insulated from balancing analyses or outright derogation. Additionally, unlike most entrenched provisions, the fixed commitment does not merely secure the vague outlines of a principle, but a specific magnitude of activity. The fixed commitment is intended to resist casual suspension, limitation or revision. Its objective is thus to put an end to further contestation about whether, and to what degree, a community should adopt a basic policy priority.

Many ordinary statutes similarly purport to limit discretion in environmental decision-making by, for example, setting targets and timelines for planning, and requiring mandatory reporting to track progress. (11) Yet these legislative requirements too often translate neither to adequate judicial enforcement, nor to meaningful changes on the ground. (12) At the same time, while constitutional provisions on climate have expanded in the last decade, these generally have not included high levels of specificity. (13) In this light, quantitative constitutional standards have been described as a '"new frontier" in environmental constitutionalism' and as 'a remarkable step'. (14) Indeed, while they have mostly eluded scholarly attention thus far, (15) fixed constitutional commitments are likely to attract greater notice as the climate emergency deepens. (16)

Under most of the current statutory, constitutional and international climate commitments around the world, governments may adopt robust policy responses only to have them impeded or reversed by less committed governments later on. Thus, an emergency that calls for an unwavering set of policy solutions well into the future may instead encounter a democratic system that can offer only intermittent and precarious responses. Fixed constitutional commitments may therefore be particularly apt tools for responding to policy challenges that require resolute action over the extreme long term. In particular, if they are effective, fixed commitments may be constitutional devices by which a jurisdiction can commit to a consistent course in response to the long-term existential policy challenge of climate change.

Yet despite their evident appeal, fixed constitutional commitments raise a suite of objections. Many of these are pragmatic, including questions about how to formulate, entrench and enforce fixed constitutional commitments. I canvass a number of these in this article. I also begin to lay down a critical set of questions interrogating whether fixed constitutional commitments are normatively justifiable in the first place.

Fixed constitutional commitments especially seem to challenge the influential set of normative constitutional theories that I group together as 'contemporary proceduralist'. I take these theories to include varieties of dialogue theory, (17) and of deliberative, (18) popular (19) and political constitutionalism. (20) Within each, open-endedness and prospectivity are among the key selling points of constitutional practice. That is, contemporary proceduralists understand the ongoing contestability of substantive standards as a condition precedent for constitutional practice if it is to remain broadly compatible with democracy. To sustain this condition, constitutional provisions should do no more than outline democratic procedures, or should set out merely the broad substantive starting points (eg vaguely worded substantive rights) of an ongoing democratic conversation about public policies. In either case, there remains a core democratic role for citizens or their representatives--even if courts are still ultimately expected to enforce the provisions--because elite legal actors are obliged to remain responsive, directly or indirectly, to broad currents of public opinion. Contemporary proceduralist theories therefore dispute the well-known charge that constitutional practice is irredeemably counter-majoritarian. (21)

For our purposes, the difficulty posed by this account is that fixed constitutional commitments appear to depart markedly from proceduralisms prospectivity. These commitments are meant to be largely backward-looking: to secure and invoke a community's past declarations of priorities, and to prevent ongoing uncertainty about those priorities. At least on the surface, then, fixed constitutional commitments provide a decidedly poor fit to contemporary proceduralism.

Before I reach this objection and possible replies to it, however, I will lay out key definitions and practical details of fixed constitutional commitments. Part II leads off by describing fixed constitutional commitments as (i) substantively fixed, (ii) binding and (iii) entrenched. Entrenchment distinguishes fixed constitutional commitments from fixture via ordinary legislation, legal convention, common law and (in most jurisdictions) international law. However, more unique is the substantive fixity of these commitments, according to which judges or legislators may not contest or alter a basic standard or its quantum (although further constitutional amendment remains possible). Fixed constitutional commitments are thus intended to be more than aspirational. They are not goals to be met at unspecified future times. Nor are they indistinct values or contextual factors inserted into a constitution to act as approximate guides to legal interpretation. Rather, fixed constitutional commitments aim to impose a direct obligation upon a government to use law and other policy instruments to meet a defined substantive standard to a defined degree across a definite timeframe. Constitutionalising fixed commitments is therefore intended to settle, well into the future, the substance of a policy debate about an emergency response, and to progress governmental deliberations that may have stalled at the threshold question of whether, or how much, an emergency response should be pursued at all.

Part III turns to the noted normative democratic objection, followed by two broad answers in reply. The first type of reply explores a justification 'external' to democracy. A state's continued existence in its current form perhaps allows expedients that would be incompatible with good governance in normal times. In the climate change area, fixed commitments may be viewed as emergency constitutional provisions that compel a response from a government unwilling adequately to respond to an existential emergency. Fixed commitments may improve the likelihood of sustaining a mitigation policy over the very long term. Thus, the first reply concedes that fixed constitutional commitments are counter-majoritarian, but views them as justified to the extent that they address a severe and chronic emergency such as climate change.

While I do not discount this external reply to the democratic objection, I focus chiefly on more satisfactory, 'internal' replies. These replies do not concede the objection from democracy, but contest it on its own terms. I argue that fixed commitments may be democracy-enhancing when they correct recurring failures of democratic procedures in long-term emergency policymaking. In this regard I make two more particular arguments. The first relatively straightforwardly proposes that fixed commitments may offset certain obvious faults of democratic processes in relation to...