This ruling seems obviously correct to me? The plaintiffs claimed this was a 14th amendment issue, but at the time the 14th was added cholera outbreaks were still somewhat common in the US and there was no remote notion of safe drinking water provided universally by municipal governments.
Hopefully there is some other legal redress under a different law or EPA regulation, but the courts can't just give in to faulty reasoning like that because people were wronged by the government.
That'd require them explaining why "the 14th Amendment predates germ theory" is a reasonable argument but not "the Second Amendment predates machine guns".
And none of these matter because the Constitution deals in principles not details.
"This guy was killed with a laser but the law against murder was written after clubs but predates lasers, so it doesn't apply and you can't call this a murder."
The ruling sounds correct to me but not because of anything to do with the date that any part of the constitution or ammendment was written.
The second amendment is a pretty well articulated negative right in the same manner as the first or the fourth in the classical liberal school of thought. These are natural rights that individuals have and the bill of rights merely states that these are outside of the government’s sphere. The technology being used whether it be voicing your opinion on the internet, your house being secure from searches with thermal cameras without a warrant, or using modern firearms doesn’t alter the right or the government’s relationship to it.
The fourteenth amendment, specifically the due process clause at issue here, says that if the government exercises its power to deprive you of life, liberty, or property it must provide due process. In this case the government was not exercising such a power. It does not say that the government must provide clean water, in which case our understanding of what “clean” means would mirror the technological indifference of the aforementioned rights. Due process clause is just a really bad vehicle for this type of grievance.
Isn't lying about the fact there's lead in water and telling them it's safe to drink a way for a government to "deprive you of life"? I mean, if any such lie, plus the associated loss of life, is allowed, government officials can in theory engineer ways to get rid of people "without due process" while keeping themselves free of any consequence.
Also, doesn't the Preamble to the US Constitution say it was established by the People with, among others, the goal to "promote the general Welfare" of the people? How is the general welfare promoted by the government deliberately holding information on what they know is going to severely damage their welfare?
I'm not saying the government shouldn't be held accountable, merely that the due process clause of the 14th amendment is the wrong vehicle. The right to due process in the case of deprivation of life does not mean any deprivation of life such as due to accident or negligence. It's more about the state executing you for a crime. Engineering a way to get rid of people would just be murder, there's no get out of jail free card there.
The preamble isn't a source of any substantive power.
On the first point, shouldn't the government officials who deliberately withheld the information they had of the water containing lead be prosecuted for attempted murder then?
On the second, why did they write it then? Just because they felt like it, while fully knowing it to be meaningless?
That makes no sense. The 14th not covering clean water at the time it was written is not because they didn't have germ theory.
The comparison to the 2nd also makes no sense. First, machine guns come up in arguments about reducing the scope of the 2nd whereas the argument here is about expanding the scope of the 14th.
Second, the 2nd is a lot clearer than the 14th. Pretty much every concrete right we get out of the 14th is either something that is inferred from it being generally recognized as an unstated right by the time the 14th was passed or has been found by arguing that it is implicit in the other more explicit rights (e.g., right to privacy as something you have to have to make some of the more explicit rights meaningful).
> The 14th not covering clean water at the time it was written is not because they didn't have germ theory.
That was the legal theory upthread. Which I contest.
> Second, the 2nd is a lot clearer than the 14th.
"nor shall any State deprive any person of life, liberty, or property, without due process of law" seems pretty clear, and I'm inclined to consider "intentionally providing contaminated water" to be a violation of it.
> The plaintiffs claimed this was a 14th amendment issue, but at the time the 14th was added cholera outbreaks were still somewhat common in the US and there was no remote notion of safe drinking water provided universally by municipal governments.
Except the law clearly says "deprive" not "provide". You'll have to show how folks are being deprived of water if you want to argue this line of reasoning, "providing contaminated water" is not covered by this text, and has the trivial rebutal that no one is forced to accept said water, even if the alternative is a shit situation. That situation does not deprive them of life, liberty, or property, and so there is no constitutional violation.
Plus, you don't need the constitution to place lawful burner on parties, you just need laws that do not conflict with that constitution. Just because the 14th/2nd don't guarantee access to clean water does not mean they therefore guarantee no access to clean water. That is not how words work.
Government officials intentionally giving someone lead poisoning is depriving them of life.
I'm 100% fine with "there's no Constitutional requirement for a jurisdiction to provide a water supply" - plenty of folks live on well water. If you're going to provide one, though, you're responsible for it.
Similarly, my town is not required to provide internet access to its residents. If my town does decide to provide internet access to me (like Chattanoga TN), they can't censor my access and use of it, because of the First Amendment.
No, it really isn’t. Yes, the constitution promises life. But it does not promise a safe life, or a secure life, or even an unpoisoned life. Exposure to low levels of lead in drinking water will not kill anyone so the Constitution just doesn’t apply. It sounds callous, but that’s the way it is. We must look to our own safety and security.
One way we do that is by banding together with our neighbors to form cities or other municipalities that tax us and use the proceeds to build safe water systems. If we elect untrustworthy or incompetent people to run those water systems then we have no one to blame but ourselves. If a city doesn’t have a law requiring the administrators of the water system to speak truthfully to the public then that is the people’s fault, not the government’s fault.
Honestly though I bet we’ll find that the administrators have technically been telling the truth. We have federal standards for things like water safety that are used to regulate water providers (which are not always public entities, mind you). Those standards do tell us how much lead in the water is acceptable and how much is unsafe, but those are two different numbers. The acceptable level is well below the threshold of safety. When this eventually gets to a trial in front of a jury I bet the administrators will argue that they were perfectly correct; that the water was safe because the levels of contaminates, although elevated, were below harmful levels.
The plaintiffs also complain about repeated boil–water notices, but that may not help their case. Any time you dig up a water pipe to repair or replace it then people using that water will need to boil it. Those notices are themselves proof that the utility was doing maintenance and repair work (presumably with the goal of fixing the problem), not proof of incompetence.
Sure, but that doesn’t apply. The Plaintiffs are not alleging that the government is executing people without due process, only that the water is less safe than advertised. Nobody has actually died, therefore nobody has been deprived of life.
Oh no, they can end your life too. But only after due process. Thus a death sentence requires a trial and appeals and so on and so forth and takes ages to actually get to the execution. Just keep in mind that chronic lead poisoning does not cause death or even shorten lives. It only reduces IQ and causes behavioral and cognitive disabilities.
If you want safe drinking water you have to provide it yourself. Either dig your own well, or band together with your neighbors to have municipal water. Or buy drinking water from a private company; lots of people in the US do that. Europeans are frequently shocked to learn this, but ironically private water companies have a better track record for safety than municipal water systems. We are, after all, talking about a contamination case involving a municipal water system rather than a private one.
If you dig your own well then you are responsible for ensuring that it remains safe. Regular testing and maintenance is entirely your responsibility. Of course you are allowed to delegate to a contractor, but ultimately the responsibility rests entirely on your shoulders.
If you subscribe to a municipal water system then the responsibility rests on the municipality. You will be electing someone to run the water system. Choose wisely. Your vote has actual physical safety consequences for you and your children. Furthermore you may want to write local ordinances that govern the behavior of this type of elected officials. You might want to be able to rely on them making truthful statements, for example. If so then you should put that in writing in your municipal ordinances. Many states and cities have already done just that! Off hand I don’t know if Mississippi or the city of Jackson have.
Similarly we also have laws and ordinances against the government poisoning people. It is usually illegal, in most jurisdictions, in most circumstances. We also have laws against negligence that leads to harms such as poisoning people.
Just because something isn’t in the Constitution doesn’t mean it’s legal. In this case people seem to have heard that safe drinking water isn’t guaranteed in the Constitution and jumped to the ridiculous conclusion that the government can poison people whenever it wants with no consequences.
The Constitution, and especially the Bill of Rights and other amendments, is mostly a list of things that the government is not allowed to take away from the people or other parts of the government. It’s not a list of all desirable things that the people want governments to do.
> Oh no, they can end your life too. But only after due process.
Yes, that's the point. There was not any sort of due process here.
> If you want safe drinking water you have to provide it yourself. Either dig your own well, or band together with your neighbors to have municipal water.
This was municipal water.
> If you subscribe to a municipal water system then the responsibility rests on the municipality.
And this ruling is letting them escape the responsibility.
And do you not understand the process? The plaintiff brings a lawsuit arguing that the defendant did a bad thing. They make multiple claims about laws that were broken. The judge may throw out any or all of those claims. Most lawsuits lose at least one. In this case one of the claims was that the municipal water district violated their 14th amendment rights. That one got thrown out. The plaintiffs appealed and the this is their appeal being denied.
I haven’t actually read the original lawsuit, but there’s no way that they were dumb enough to make only that one claim against the water district. They’ll still have their claims about negligence and so on and so forth. It’ll go to trial eventually, or the district will settle. Losing this claim does not let the district escape their responsibility.
When I worked at EFF, I read a lot of news coverage (and forum discussions) of litigation, sometimes including litigation that I was working on. It was often very hard to get people to see larger context about issues like
* in the course of a court case, a judge (or multiple judges from multiple courts) are asked to make many different decisions on many different legal issues; most of those don't end or determine the outcome of the overall case
* indeed, some of the decisions are about minor issues and others are about major issues
* some of the issues presented in a case may be "questions of first impression" where no court has ever addressed them before; these are potentially very important as a matter of precedent because they might affect how similar questions are viewed in other cases
* other issues may be very longstanding or familiar ones
* lawyers may be willing to bring cases with different degrees of novelty (e.g. relying entirely on an untested theory, or not!), and with different likelihoods of success
* legal standards will often have many different elements, and one party may lose under a standard even though it met most of the elements (but not all of them)
All of these are more complex from the natural impulse to say "hooray, the court made a decision in favor of the people I think are the good guys!" or "boo, the court made a decision in favor of the people I think are the bad guys!".
I don’t like it, but you’re probably right. It is evident that many commenters have treated this story as a catastrophe that proves that the government is out to get them rather than a temporary setback for the plaintiffs and the obvious consequence of a logical overreach.
That statement is false. Repeating firearms like the Puckle gun predate the bill of rights by ~75 years.
More importantly, the Founders were hardly unfamiliar with privately owned military firepower. The Constitution expressly authorized Congress to grant letters of marque, and the government commissioned privateers to attack enemy shipping using their cannon-armed privately-owned warships.
If you want to change an amendment do it the correct way, repeal it.
I know you're an idealogical zealot but, for anyone else reading.
I do find it interesting that the only laws I can find limiting the arming of private vessels were with respect to arming them and then sending them off to fight in foreign wars.[1]
[1] Neutrality Act of 1794, §§3–4, 1 Stat. 381, 383
So do you or do you not believe the First Amendment protects speech on this website? Or does it only protect quill pens and moveable type printing presses?
Machine guns are banned at the federal level, though, and it's been consistently upheld by the courts. I'm not sure I follow the argument anyway; the US constitution consists of negative rights (e.g. freedom to do something) rather than positive rights (e.g. entitlements)
> I'm not sure I follow the argument anyway; the US constitution consists of negative rights (e.g. freedom to do something) rather than positive rights (e.g. entitlements)
The limit on machine guns is unconstitutional and most of the argument against ignore the ninth amendment (e.g founding fathers couldn’t imagine a weapon past the musket, therefor any weapon made after 1776 is illegal)
I doubt the ninth amendment applies to entitlements, as these are fundamentally different from liberties
Germ theory originated in Europe and it took a couple of decades before the knowledge transfer made it to the US and started getting accepted. It took a while for it to be come generally accepted in Europe too. I'm hazy on the exact dates, but even accepting the 1860 date, it's far too close to 1868 to assume politicians and the general public in the US (or even in Europe in 8 years) would have passed a constitutional amendment with full acceptance or understanding of germ theory.
It wouldn't have taken decades. Information might have taken a year or two. Decisions on what to do with that may take longer. I find it unlikely that germ theory wasn't known by those involved with the 14th amendment, even though it wasnt based on it.
I’m basing my assumptions based on a book called Rabid which suggested (if memory serves correctly) that the rabies vaccine (developed in 1885) was the one of the early catalysts for the wide acceptance of germ theory among the American public. If you want a random source here is one https://www.civilwarmed.org/germ-theory-civil-war/
> To his credit, Dr. Lister crossed the Atlantic to deliver a lecture to a hostile American audience to try and convince them of his methods in 1876.
> Our own Jake Wynn argues that it wasn’t until the death of President Garfield in 1881 that the American public and physicians began to turn toward germ theory. His slow and painful descent from an assassination attempt was well documented and publicized at the time.
There is a difference between information transmission and it getting absorbed into the public opinion and understanding so much that a constitutional amendment would consider it. To go from Joseph Lister’s and Louis Pasteur’s work in the 1860s and think that politicians and the general voting public in the US passing a constitutional amendment that considers it in a handful of years just doesn’t make much sense.
Things taking a year or two was normal, but 8 years is plenty of time. There were long distance publications in many areas of the world even earlier in time. You can look at how every back in the 1700s Benjamin Franklin had a newspaper across the US and routinely corresponded with Europe.
> Plaintiffs allege1 that the City, through a series of acts and failures to
act, caused lead to leach into Jackson’s drinking water. City officials then,
despite the presence of lead in the water, incorrectly told residents that the
water was safe to drink, despite knowing it likely was not.
This is the allegation. Doesn't sound much like "the constitution guarantees us safe drinking water," but rather "the constitution says our city government officials can't knowingly poison us and lie about it"
Hopefully there is some other legal redress under a different law or EPA regulation, but the courts can't just give in to faulty reasoning like that because people were wronged by the government.