Modern liberal constitutions grounded in Enlightenment ideals, starting with the late eighteenth-century French and American constitutions, are not ordinarily thought of as imposing requirements of justice, and even less so of distributive justice. In the broadest terms, such constitutions are meant to concentrate on safeguarding four essential pillars: limitations on the powers of government; adherence to the rule of law; protection of a core of fundamental rights; and assuring certain guarantees necessary for the maintenance of a working democracy. On the other hand, most post-World War II liberal democratic constitutions do comprise a set of social and economic rights calling for the provision of some welfare benefits, minimum shelter, some level of education, and some health care benefits. These social and economic rights do plainly comport a distributive justice component. Indeed, in the pursuit of a minimum of material well-being for all, based on the equal basic needs and equal dignity of each person within the relevant constitutional unit, it is necessary to effectuate certain economic redistributions. Thus, for example, assuming that a constitution requires that everyone within society have the opportunity to fulfill certain basic health needs, that would most likely require some wealth redistribution that could be achieved through progressive taxation. In this latter case, the constitution would incorporate the distributive justice precept “to each according to her basic health needs,” and given the typical wealth disparities within advanced contemporary societies, the achievement of this constitutional mandate would require some measure of wealth redistribution.

Among the fundamental needs shared by all humans, water is one of the most universally recognized. Yet, in the United States the idea that household water for drinking and basic hygiene is a constitutional right has seldom been embraced at any level of government. Instead, there are notorious examples of massive water shutoffs in Detroit and Baltimore, and routine water shutoffs in many other communities. While many states and local authorities across the country suspended water shutoffs temporarily during the officially-declared COVID-19 crisis, others did not. Moreover, these suspensions were not open-ended; shutoffs for non-payment resumed long before the economic impacts of the pandemic were resolved. In the middle of a pandemic where handwashing and hygiene are critical to public health, water shutoff practices nationwide were a crazy-quilt of discretionary actions or omissions by local authorities.

Imagine people forced to sleep on a cold, concrete slab, exposed to the elements. Imagine they are deliberately sleep-deprived through repeated middle-of-the-night wakeups, with lights constantly on and sometimes with loud music played. Imagine they are denied adequate food and water, then forced to endure the humiliation of exposing themselves in public to urinate or defecate and denied adequate sanitary facilities to clean themselves. Imagine them being degraded, threatened, and harassed by both private actors with the tacit or explicit blessing of the government, or the government’s own law enforcement. For many, this may recall the disturbing photos of detainees at the Abu Ghraib prison in Iraq. And few would have any doubt that the treatment in these images constitutes torture, or at a minimum, cruel, inhuman, or degrading treatment. And yet, many people walk past people experiencing this same treatment every day on the streets of the United States of America without further consideration. People experiencing homelessness are deliberately subjected to such conditions through laws, policies, and practices that criminalize their most basic, life-sustaining activities, such as sleeping, eating, and going to the bathroom. While those in Abu Ghraib were victims of a foreign war, people experiencing homelessness in the United States are victims of a domestic war on the poor and undergo trauma no less harmful. Now, thanks to the work of dedicated advocates, such treatment is recognized as a human rights violation, not only at the international level, but also domestically. Advocacy in far-off Geneva to develop human rights standards has resulted in concrete changes to federal policy here at home and has ultimately impacted the practical enjoyment of human rights by some of the most marginalized and vulnerable in our society. This experience may be helpful to other marginalized groups, which continue to face human rights violations in the United States, in developing their own strategies to protect basic rights.

The idea that every human being has a right to a clean and healthy environment has caught the imagination of people across religious, cultural, constitutional, national, and continental divides. What, though, is the case for environmental human rights? This question incorporates many others, including whether there is or ought to be a human right to a healthy environment; where and how it should be recognized; how to implement it; and the extent to which it causes or correlates to improvements in outcomes. Simply, the case for environmental human rights is complicated and complex. There are normative, ethical, and moral justifications that both the planet and people living on it are better off in a world that recognizes a right to a healthy environment. Reflecting this, a majority of nations already do so, and the effort for international recognition is gaining momentum. Ultimately, however, while it is compelling, the case for environmental human rights has shortcomings that warrant consideration and further analytical interrogation.