Americans do not have a constitutional right to clean drinking water, the 5th U.S. Circuit Court of Appeals ruled on Sept. 4. The decision follows a lawsuit that alleged the City of Jackson’s indifference and negligence with its water system led to several of the plaintiff’s children being diagnosed with lead poisoning after exposure to contaminated water.
“These deprivations, while grievous, do not infringe upon any deeply rooted constitutional right,” Judge Kurt D. Engelhardt said in the accompanying opinion.
The case before the court, Sterling v. The City of Jackson, was filed in 2022 by Jackson resident Priscilla Sterling alongside three other residents amidst the Jackson Water Crisis.
The plaintiffs alleged in the original lawsuit that they suffered from various ailments due to exposure to Jackson’s contaminated tap water. The plaintiffs argued that the City, acting under the color of state law, created or exacerbated the dangers to which the plaintiffs were exposed. The plaintiffs also alleged the City knew of the water’s risks but deliberately withheld that information. Both claims together, the plaintiffs argued, created a violation of their substantive due process under the 14th Amendment.
Judge Catherina Hayes wrote in her dissent that the City of Jackson introduced lead and exacerbated its presence within the water supply under former Mayor Tony Yarber, misled residents and withheld information regarding the presence of and dangers related to lead in the local water system, forcing plaintiffs and their children to contend with the lifelong effects of lead ingestion.
State-Created Danger
The court majority wrote that the Constitution does not provide redress for every governmental wrongdoing, encouraging plaintiffs to look elsewhere for recourse.
“The Constitution does not provide a remedy for Plaintiffs’ injuries,” Judge Kurt Engelhardt said in the Friday ruling. “But that does not mean they are without a remedy. Plaintiffs may pursue tort claims against Defendants, elect officials who will better manage the water system and provide accurate information to the public, or petition their state and federal legislatures for other remedies.”
The judges argued that the 14th Amendment cannot provide redress for the plaintiffs’ alleged injuries, following a modern Supreme Court advisory for circuit judges to avoid creating “novel theories of constitutional liability.”
But while the court’s majority argued that Americans have no explicit rights to clean water or accurate information from public officials, the dissenting judges questioned why the biggest issue in the case was excluded from any mention in the majority opinion.
“If one were to read only the en banc majority opinion, they could be forgiven for misunderstanding Plaintiffs’ allegations and concluding that, as far as their Fourteenth Amendment claims go, Plaintiffs solely ‘allege[d] substantive due-process rights (1) to not be exposed to water that was contaminated … and (2) to truthful information from public officials…,’” Judge Catharina Hayes said in her dissent.
However, those claims were only half of the lawsuit. The lawsuit alleged two due process claims—bodily integrity and state-created danger, Hayes said.
“Much ink was spilled on the latter of these claims at the panel stage, though, curiously, there is no mention of the state-created danger theory in the en banc majority opinion,” Hayes said in her dissent, questioning her fellow judges. “This is especially confounding because Plaintiffs expressly claimed that they have ‘a clearly established right … to be protected from risks (and) dangers … created and/or caused by persons acting under color of state law.’”
Hayes stressed that 10 of the nation’s 13 circuit courts have adopted a state-created danger doctrine that allows state actors to be held accountable for foreseeable injuries resulting from knowingly placing a citizen in danger.
“In contrast, our court stands practically alone in its decades-long fence-sitting, declining to either adopt or definitively rule out the state-created danger doctrine,” Hayes said in her dissent.
Judges Patrick E. Higginbottom, Dana M. Douglas, Irma Carrillo Ramirez and Carl E. Stewart joined Hayes’ dissent.
While Hayes recognized the Supreme Court’s trend towards constitutional originalism in recent cases—like the Dobbs v. Jackson Women’s Health Organization decision that overturned constitutional protections for abortion—she emphasized that justices have “…unambiguously underscored that ‘Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects,’” Hayes said in her dissent.
“[T]he Supreme Court has not displaced the historically long-recognized right to bodily integrity,” Hayes continued. “The Court itself declared in Dobbs that it was not ‘cast(ing) doubt on precedents that do not concern abortion.’”
While five of the judges dissented, their disagreement with the majority opinion was only in-part and focused solely on the state-created danger claim.
“At a minimum, Plaintiffs are entitled to discovery on their sufficiently plausible allegations
that the City violated their constitutional rights, and the proper course is for this case to be remanded to the district court to allow such discovery to occur,” Hayes argued.
Constitutional Originalism
Judge Kurt D. Engelhardt’s logic is based on a trend in U.S. Supreme Court decisions in recent decades of advising courts to “…’exercise the utmost care whenever we are asked to break new ground’ in the realm of substantive due process,” Engelhardt said, explaining his reasoning.
The court’s logic is based in the philosophy of constitutional originalism, constitutional law scholar Ilya Somin told the Mississippi Free Press. Somin teaches law at George Mason University and serves as the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute.
Constitutional originalism is the idea that the U.S. Constitution should be interpreted through the meaning it had to either the general public, or its authors, at the time of its adoption in 1788.
Following the 1997 Glucksberg decision, “… the (Supreme Court) generally held that you can’t use the due process clause to recognize a right or to protect a right unless the right was deeply rooted in history and tradition and the like, which this one—arguably, at least—would not be,” Somin told the Mississippi Free Press.
The Glucksberg decision came following a series of mid-to-late 20th century Supreme Court decisions that used the due process clause of the 14th Amendment to “extrapolate new rights or rights, at least, not previously recognized or understood… in various previously mostly unanticipated ways,” Somin told the Mississippi Free Press.
The philosophy surrounding constitutional originalism was popularized under late Supreme Court Justice Antonin Scalia, University of Mississippi constitutional law expert Jade Criag told the Mississippi Free Press.
“The theory itself, as a method of constitutional interpretation, is rather new and originated around the 1980s,” Craig told the Mississippi Free Press. “I think originalists will often argue that their method is rooted in the original interpretation of the Bill of Rights, so it’s always been there—but it’s not consistent with how judges have typically analyzed the Constitution or decided what claims would be recognized under the Constitution.”
Living Constitutionalism
Constitutional originalism sits opposite to the philosophy of living constitutionalism, which contends that the Constitution’s interpretation should adapt with modern times without formal amendments and/or that the founding fathers intended the Constitution to be a living document.
Living constitutionalism was the prevailing theory prior to the Glucksberg decision, University of Mississippi constitutional law expert Jade Craig told the Mississippi Free Press.
The mid-to-late 20th century Supreme Court decisions that extrapolated new rights via the 14th Amendment were recognizing what are called unenumerated rights, or constitutional rights that aren’t explicitly mentioned in the text.
The legal doctrine supporting extrapolation of new rights from the 14th Amendment’s due process is referred to as substantive due process, Craig explained. While some constitutional originalists believe in substantive due process, it is more commonly a feature in living constitutionalism.
Unenumerated rights established during the Supreme Court’s living constitutionalism era include: the right to legal counsel from Gideon v. Wainwright in 1962, the right to privacy from Griswold V. Connecticut in 1965, the right to marry interracially from Loving V. Virginia in 1967, and the right to abortion from Roe v. Wade in 1973, among others. The latter was overturned by the Supreme Court in 2022 in Dobbs v. Jackson Women’s Health Org.
“The trick (with originalism) is that historically very few rights were recognized as substantive rights by the framers around the the late 18th century or shortly after the Civil War (when the 14th Amendment was ratified), including many of the rights that most people think are very important in a modern society,” Craig told the Mississippi Free Press. “ … the interpretive method becomes a tool for eventually leading to the conclusion that very few substantive rights are protected, and the ability to bring a civil rights-based claim is severely narrowed or constrained.”
The Supreme Court Historical Society refers to the period between 1953 and 1969—when many unenumerated rights were first recognized by the Supreme Court—as the ‘incorporating rights’ era, but has not named any later time periods in the court’s history.
“Over time, as the (Supreme Court) has become increasingly conservative, they’ve narrowed the conception or understanding of substantive rights that are protected under the Constitution that are not specifically enumerated or articulated in the document,” Craig told the Mississippi Free Press. “With this narrowing, it becomes very hard to frame any right that isn’t specifically about life, liberty, or property in a direct sense as a substantive right protected by the Constitution.”
Future litigants might be able to turn to the Ninth Amendment for civil rights protections, Craig told the Mississippi Free Press.
Although the Ninth Amendment specifies that the lack of mention of any specific right in the Constitution does not mean that right does not belong to the people, it was not mentioned in the Friday ruling.
“Courts are typically constrained to basically adjudicate the case based on the claims that the plaintiffs have raised, so they don’t normally go outside of the theories raised by the plaintiffs,” Craig explained. “And the interesting thing in Sterling is … they raise(d) a theory that could have provided a route to allow their case to continue, and the court ignored the theory and still dismissed the case.”
Horhn: City Remains Committed to Health, Safety
Meanwhile, the City of Jackson celebrated the court’s decision.
“We are pleased that the Fifth Circuit upheld the dismissal of these claims,” Jackson Mayor John Horhn said in a Sept. 4 press release. “The City remains committed to the health, safety, and well-being of every Jackson resident.”
City Attorney Drew Martin thanked the court and his fellow attorneys following the ruling.
“This decision brings this case to an important conclusion at the appellate level,” City Attorney Drew Martin said in a Friday Press release. “The Fifth Circuit affirmed that the claims against the City and its officials could not move forward under federal law. We appreciate the court’s thorough review of this matter. We are also grateful to Attorney Clarence Webster and Jones Walker Law Firm for their exceptional representation and dedicated work on the City’s behalf.”
Webster noted the significance of the decision.
“This is one of the most significant constitutional rulings the Fifth Circuit will issue this year,” Webster told the Mississippi Free Press in an email. “The decision validates years of focused legal work grounded in longstanding constitutional principles. We are pleased the en banc court affirmed the City’s position and provided important guidance on the limits of constitutional liability.”
A similar case regarding lead pollution in the water supply in Flint, Michigan, in the 6th U.S. Circuit Court of Appeals reached an opposing decision in 2019, eventually reaching a settlement in 2021, but the legal arguments differ widely.
While it is rare for a case to be accepted by the U.S. Supreme Court, this is one has a chance because there is a difference in circuits, Martin said.
“That’s the kind of case the Supreme Court likes to look at so they can make the law uniform nationwide, so I strongly expect that (an appeal) will happen,” Martin said. “I don’t know if the Supreme Court will accept it or not. We’ll see”
Regardless of if the case is appealed or not, Jackson’s legal problems related to lead pollution in its water system are not over, City Attorney Drew Martin told the Jackson City Council on Tuesday.
“Even assuming … that we keep this judgment or this order, and I think we will, that still doesn’t finish the case because all of these individuals who have filed this suit as a federal class action have individual state law claims, and essentially that’s part of what the federal court said in this order,” Martin said.
The other major federal lawsuit against the City of Jackson in relation to water contamination, referred to as the Jackson Water Master Case, remains ongoing, Martin said. U.S. District Court for the Southern District of Mississippi Judge Carlton Reeves is presiding over the case. A lawsuit regarding the management of the city’s water system remains ongoing.
Mark Chalos, who serves as the current lead attorney opposing the City of Jackson in Sterling v. The City of Jackson case, was not available for comment.
It is unclear whether Chalos intends to appeal the Friday decision.
Follow the Mississippi Free Press’ coverage of Jackson Water and read past stories here.
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